                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

LES JANKEY,                              
                Plaintiff-Appellant,             No. 06-55957
                 v.                                D.C. No.
POOP DECK; QUENTIN L. THELEN;                   CV-04-09741-
and THE POOP DECK INC., a                           RSWL
California corporation;                           OPINION
             Defendants-Appellees.
                                         
        Appeal from the United States District Court
           for the Central District of California
        Ronald S.W. Lew, District Judge, Presiding

                   Argued and Submitted
           February 7, 2008—Pasadena, California

                     Filed August 12, 2008

      Before: Susan P. Graber and Marsha S. Berzon,
    Circuit Judges, and Claudia Wilken,* District Judge.

                    Opinion by Judge Graber




  *The Honorable Claudia Wilken, United States District Judge for the
Northern District of California, sitting by designation.

                               10409
10412                JANKEY v. POOP DECK


                         COUNSEL

Thomas E. Frankovich and Julia M. Adams, Thomas E.
Frankovich, PLC, San Francisco, California, for the plaintiff-
appellant.

E. Thomas Moroney, Redondo Beach, California, for the
defendants-appellees.


                         OPINION

GRABER, Circuit Judge:

   Plaintiff Les Jankey, an individual with a physical disabil-
ity, sued Defendant Poop Deck, a beer and wine bar, and its
owners, Defendants Quentin L. Thelen and The Poop Deck
Inc., under the Americans with Disabilities Act of 1990
(“ADA”), 42 U.S.C. §§ 12101-12213. Plaintiff alleged that
Defendants failed to remove architectural barriers at a place
                        JANKEY v. POOP DECK                      10413
of public accommodation, in violation of the ADA. The par-
ties entered into a settlement agreement, which the district
court approved, that required Defendants to remedy the prob-
lems. Plaintiff then sought attorney fees as a prevailing party
under the ADA. The district court denied the request, ruling
that “an award of attorney’s fees and costs under the circum-
stances would be unjust.” We reverse and remand.

        FACTUAL AND PROCEDURAL HISTORY

   Plaintiff has a congenital deformity of his lower extremi-
ties, requiring that he use a wheelchair. Plaintiff alleges the
following facts. On September 23, 2004, he visited the Mer-
maid, a restaurant in Hermosa Beach, California, to have a
snack. After being unable to use the restroom at the Mermaid,
he visited the Poop Deck, a beer and wine bar adjacent to the
Mermaid, to have a drink and use the restroom. When he
attempted to visit the Poop Deck, he encountered architectural
barriers that denied him legally required access to the bar and
restrooms. He “found that there was no lowered bar area from
which to order a drink or to sit at the bar,” that he “had diffi-
culty wheeling through the narrow door of the restroom, as it
only had a 27 inch clearance,” and that, when he “attempted
to transfer to and from the toilet without the use of a grab
bar,” he “stressed and strained himself in the transfer pro-
cess.”

  On November 30, 2004, Plaintiff and the organization Dis-
ability Rights Enforcement, Education, Services: Helping You
Help Others (“DREES”) filed suit against Defendants in the
Central District of California.1 They alleged violations of the
ADA, 42 U.S.C. §§ 12101-12213; the California Disabled
Persons Act, Cal. Civ. Code §§ 54-55.2; California Health &
Safety Code § 19955; the Unruh Civil Rights Act, Cal. Civ.
Code § 51; and the California Unfair Competition Act, Cal.
  1
  Plaintiff earlier had filed suit against the Mermaid. Defendant Thelen
owns the building that houses both the Poop Deck and the Mermaid.
10414                       JANKEY v. POOP DECK
Bus. & Prof. Code §§ 17200-17210. Under the ADA, they
sought injunctive relief to compel Defendants to make the
Poop Deck accessible to individuals with disabilities, and they
requested attorney fees and costs. On the California state law
claims, they sought injunctive relief, attorney fees and costs,
general and compensatory damages, punitive damages, statu-
tory damages, special and consequential damages, and pre-
judgment interest.

   Neither Plaintiff personally nor his lawyers provided
Defendants with any form of prelitigation notice, whether for-
mal or informal. In other words, they did not notify Defen-
dants in any way of the alleged accessibility violations before
they filed suit.2

   On July 25, 2005, the district court dismissed DREES for
lack of standing and declined to exercise supplemental juris-
diction over Plaintiff’s state law claims, ruling that the claims
  2
    Instead, Plaintiff’s counsel, the Frankovich Group, sent Defendants a
letter with a copy of the complaint. The letter stated, in part:
      Once defense attorneys respond to or answer the Complaint, the
      vast majority, rather than attempt to settle the action, embark on
      a “billing” exercise. Simply put, the defense attorneys want to
      sufficiently “bill it” before they get realistic about the settlement.
      This may cost The Poop Deck Inc. a significant amount of money
      that could be better spent on the remedial work and settlement of
      the action. Keep in mind, the more work the defendant’s attor-
      neys force on us, the more work we must do. The more work we
      do is just that much more money The Poop Deck Inc. may be
      responsible for paying.
         We do not believe you have any bona fide defense to your con-
      tinuing obligation to identify and remove architectural barriers
      pursuant to the ADA, which was passed over a decade ago (15
      years).
See Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1063-64 (9th Cir.
2007) (per curiam) (describing a strikingly similar letter from the same
lawyers as potentially “intimidating to unrepresented defendants [and], at
best, a questionable exercise of professional judgment”).
                         JANKEY v. POOP DECK                       10415
predominated over the federal ADA claim. Those rulings are
not at issue on appeal.

  On July 26, 2005, Defendants’ counsel, E. Thomas
Moroney, sent Plaintiff’s counsel, Julia Adams at the
Frankovich Group, a letter as a follow-up to a telephone con-
versation that had taken place one month earlier. The letter
expressed Defendants’ belief that they were not violating the
ADA because the Poop Deck had accessible seating and
because of the age and size of the facility.3 The letter pro-
posed a compromise:

      The Poop Deck and The Mermaid Restaurant are
      located side-by-side in a common building with a
      dividing wall. The property is owned by Mr. Thelen.
      The Mermaid is a defendant in a separate lawsuit
      brought by your client. The Poop Deck and Mermaid
      are willing to build a third unisex ADA compliant
      restroom in the Mermaid and have that restroom
      available to Poop Deck and Mermaid customers. The
      Poop Deck would post appropriate signage. The
      Poop Deck and Mermaid front The Strand, which is
      the beach bike, skate, and pedestrian walk way. A
      disabled customer from the Poop Deck can get to the
      Mermaid on The Strand without crossing streets or
      the Mermaid parking lot.

         The Poop Deck is also willing to address accessi-
      ble seating by trying to lower and widen a portion of
      the shelf/rail that runs along the northern wall.

        I believe a shared facility is a reasonable and
      appropriate response. Given the age of the building
      and its common ownership it is unreasonable to
  3
   For certain facilities, the ADA requires only that the owners “remove
architectural barriers . . . where such removal is readily achievable.” 42
U.S.C. § 12182(b)(2)(A)(iv) (emphasis added).
10416                JANKEY v. POOP DECK
    expect the parties to incur the expense of completely
    remodeling several existing restrooms, all of which
    are undersized and likely could not meet new con-
    struction ADA requirements in any event.

       Last month I asked whether these modifications
    would satisfy your client’s demands and allow us to
    settle the litigation. My clients would like to proceed
    with these modifications knowing that it will bring
    the lawsuits to an end. We do not want to be in a
    position of spending money on these modifications
    only to later learn that your client disapproves of
    them or demands something else. If your client does
    not respond or if we cannot reach agreement on the
    modifications, we will do what we believe is reason-
    ably required under the circumstances and defend
    the litigation. But our first preference is to try and
    reach some agreement.

   On August 23, 2005, Moroney sent Adams a second letter:
“I would greatly appreciate some response to the proposal that
has been on the table since June.”

  On October 7, 2005, Moroney again sent Adams a letter.
The district court had appointed a mediator to the case, and
Moroney proposed a mediation date. Moroney also wrote:

       In June, I proposed a resolution that addressed the
    site issues as alleged in your complaint against the
    Poop Deck (as tenant) and Mr. Thelen (as landlord).
    I confirmed that proposal in writing. I followed-up
    with phone calls. To date, I have heard nothing from
    your office. My understanding is that the same is
    true with regard to the separate case alleging site
    issues specific to the Mermaid Restaurant (owned by
    Mr. Thelen), which is being defended by different
    counsel.
                    JANKEY v. POOP DECK                10417
       It may be utterly unnecessary for you to travel to
    Los Angeles for a mediation in this case, but we will
    not know that unless and until we get a response to,
    or at least a discussion about, the proposal on the
    table. If you have some fondness for downtown Los
    Angeles, then I suppose we will have the discussion
    during the mediation. But the trip and expense may
    be unnecessary.

   On November 1, 2005, Moroney sent Adams an e-mail:
“Any word on your end re the proposal on the table?” Three
days later, Moroney followed up the e-mail with another let-
ter:

       As you know, we have a mediation scheduled for
    November 16. In June, I put a proposal on the table
    involving structural modifications to the Poop Deck
    and Mermaid that addressed your client’s concerns.
    I have followed-up on that proposal with phone calls
    and letters to you asking for a response. To date,
    your client still has not responded.

       I am concerned that the mediation will be quite
    unproductive if you do not provide a response to or
    at least engage in some dialogue about the proposed
    modifications before we meet on the 16th. If you
    take the position at the mediation that our existing
    proposal is inadequate in some way and have some
    other modifications in mind, we will not be able to
    agree or disagree with any counter proposal without
    first having input from an architect and contractor
    and an understanding of what the City, County, and
    Alcohol Beverage Control Board might say about
    different modifications. So if, at the mediation, you
    come in and say we want “x,” the very best response
    we could give you is: “we have to run that by all
    sorts of other folks before we can give you a
    response.” The mediation will end. Our clients and
10418                 JANKEY v. POOP DECK
    the mediator’s time will have been wasted, and you
    will have flown to Los Angeles for nothing.

      We will have the same problem if you respond
    before the mediation but wait until the last minute
    before doing so. Please give us a response to the pro-
    posal by next Wednesday. Hopefully that will give
    us enough lead time to be able to productively dis-
    cuss resolution on the 16th. Thank you.

   The following Wednesday, November 8, 2005, Thomas E.
Frankovich, the Frankovich Group’s namesake, finally
responded to Moroney’s entreaties with a letter that he jointly
wrote with Adams. The letter accepted Defendants’ proposal
of a single, unisex, ADA-accessible restroom located in the
Mermaid Restaurant. Frankovich also requested that the res-
taurant add “signage of significant size . . . indicating the
location and path of travel to the accessible restroom,” “that
an accessible area in the bar . . . be created,” and that “a sign
bearing the International Symbol of Accessibility . . . be
posted adjacent to the front door,” all of which Moroney had
proposed in varying levels of detail. Frankovich then “ma[d]e
a monetary demand contingent on an agreement being
reached as to the requested injunctive relief.” He stated:

    [I]f this case were to go to trial, defendants’ potential
    exposure for statutory damages [under state law]
    alone is potentially $48,000.00.

       Of course, we are cognizant that settlement value
    is less than what could be expected at time of trial
    and have, therefore, taken this into consideration.
    Based upon the facts of this case and the methods by
    which damages may be calculated, plaintiff’s
    demand to settle the compensatory damage claim for
    Les Jankey is $20,000. Additionally, our attorneys
    fees, costs and litigation expenses to date are
    $21,500 which includes expert fees in the sum of
                      JANKEY v. POOP DECK                   10419
    $4,700. Thus, plaintiffs’ global demand to settle all
    monetary claims would be $41,500.00.

   Moroney called Adams to confirm the content of the letter,
and he responded the next day with a letter that reconfirmed
the modification plans to which Frankovich had agreed in
writing and to which Adams had agreed over the telephone—
namely, the shared restroom in the Mermaid and the addition
of signage and an accessible seating area in the Poop Deck.
The letter noted that Defendants had submitted the restroom
construction plans to the city for approval months earlier and
that the construction plans also included widening the
entrance to the Poop Deck, an accessibility modification that
Plaintiff had not requested. The letter concluded: “I believe
these plans address the ADA concerns. If your client believes
that these plans are inadequate or something else is required
please advise me by the end of the week [November 11]. I
will call you in response to your letter of November 8 early
next week.” Plaintiff did not object to the plans that week.

   On November 14, 2005, two days before the scheduled
mediation session, Moroney called Adams and told her that
Defendants would settle all monetary claims for $2,500. In
response, Frankovich faxed to Moroney a letter that rejected
Defendants’ counteroffer: “[P]laintiff’s demand remains at
$41,500. Plaintiff will be happy to entertain a reasonable
counter-offer that takes both damages and attorneys’ fees and
costs into consideration.” In addition, the letter objected, for
the first time, to the fact that Poop Deck customers would
have “to go outside and around the building to reach the
[ADA-compliant] restroom.” Frankovich stated that “[t]he
shared restroom [with the Mermaid Restaurant] will only
work if interior access is provided. If not, . . . two fully acces-
sible restrooms are required.”

   Moroney immediately sent a letter to the court-appointed
mediator requesting that the mediation session be postponed
in light of Frankovich’s letter. He wrote:
10420                 JANKEY v. POOP DECK
       Mr. Frankovich just faxed me a letter . . . that
    places us exactly in the situation I expressed con-
    cerns about last week and one I have been trying to
    avoid since June. . . . I will refrain in this letter from
    characterizing Mr. Frankovich’s last minute response
    as either a withdrawal of their prior agreement or a
    misunderstanding. I will, however, say that I called
    Ms. Adams after receiving her office’s November 8
    letter and before writing my confirming November
    9 letter . . . to make sure we were on the same page.

      In either case, it is certain that we will not be in
    any position to discuss opening walls between two
    separate businesses with different owners and differ-
    ent type ABC licenses on Wednesday. We will need
    input from an architect, contractor, Department of
    Alcohol Beverage Control and City of Hermosa
    Beach . . . .

       Since the monetary award plaintiff seeks in the
    pending action is driven entirely by a possibility that
    he might recover attorneys’ fees, I am frustrated that
    we will be participating in a mediation that cannot
    possibly resolve the matter. I am particularly dis-
    turbed that plaintiff’s lawyers will be incurring and
    seeking recovery of fees for participating in a media-
    tion rendered unproductive by their failure to com-
    municate about these issues months ago, or at the
    very latest last week when we had experts on loca-
    tion to evaluate the issues.

       I suggest we delay mediation until my clients and
    I can confirm one way or the other the feasibility,
    legality and expense of what Mr. Frankovich now
    proposes. . . . [I]t makes little sense for us to chat
    about them without having had an opportunity to
    evaluate the situation.
                    JANKEY v. POOP DECK                10421
The mediator rescheduled the mediation for December 5,
2005.

   On November 23, 2005, Moroney sent Adams and
Frankovich a letter asking that, before the scheduled media-
tion, “our two contractors . . . have a discussion via phone,
without lawyers, to see whether they can reach common
ground on what is readily achievable with respect to the Poop
Deck restroom issue.” Adams and Frankovich declined
Moroney’s offer.

  On December 2, 2005, Frankovich called Moroney to dis-
cuss a possible settlement to obviate the need for mediation.
Although the record is unclear whether the parties met for
mediation on December 5, 2005, the next day Moroney sent
Adams and Frankovich a letter that memorialized their
December 2 discussion:

    You again agreed to our proposal to construct a uni-
    sex accessible restroom in the Mermaid adjacent to
    the existing Mermaid restrooms with that restroom
    also being available to Poop Deck customers, and
    the path of travel being outside along the Strand and
    into the south facing entrance of the Mermaid (the
    main entrance). Appropriate signage will be posted.

       You had previously agreed that our proposal to
    increase accessible seating in the Poop Deck is ade-
    quate. As of Friday, no other access issues had been
    raised in our discussions or correspondence.

  Although the parties appeared to agree on the necessary
modifications, they did not have an agreement in writing, nor
did they have an agreement on Plaintiff’s claim for monetary
damages. Consequently, on December 23, 2005, Moroney
sent Adams and Frankovich another letter:

       So far as I know, we have agreed on modifications
    that adequately address the access issues at the Poop
10422                JANKEY v. POOP DECK
    Deck. The Poop Deck is proceeding with those mod-
    ifications.

       The court dismissed all plaintiff’s damage claims.
    With agreement on the access issues, the appropriate
    response would be for you to dismiss the complaint,
    or alternatively, confirm in a document we can pre-
    sent to the court that the access issues have been
    resolved. At that point, you can file a motion seeking
    your attorneys’ fees, which we will oppose.

       If you proceed with the lawsuit seeking unneces-
    sary or moot injunctive relief, we will file a motion
    for summary judgment. Given our agreement on
    access, such a motion should be unnecessary and one
    of the options we will consider is a request that the
    court order that plaintiff pay defendants’ fees in hav-
    ing to file the motion.

       Please immediately dismiss the lawsuit or prepare
    a document for filing with the court confirming that
    the access issues have been resolved.

   On December 29, 2005, Adams and Frankovich responded
by faxing Moroney a proposed settlement. After minor revi-
sions, the parties finally entered into a settlement agreement.
Under the terms of the settlement, Defendants agreed to the
following modifications:

    a)   Post a sign bearing the International Symbol of
         Accessibility (“ISA”) adjacent to the front door;

    b)   Widen entrance doorway to a width of 32″ when
         the door is open to 90 degrees (The parties agree
         and acknowledge that this modification has been
         completed.);

    c)   Lower and bevel the front entrance threshold to
         a maximum of ½ in. above the floor (The parties
                      JANKEY v. POOP DECK                   10423
         agree and acknowledge that this modification
         has been completed.);

    d)   Provide an [ADA Accessibility Guidelines]
         compliant accessible seating area for service to
         persons with disabilities (The parties agree and
         acknowledge that this modification has been
         completed.); and

    e)   Provide a fully accessible restroom facility, per
         plans of architect Steve Jones, . . . located within
         the Mermaid Restaurant to be shared by patrons
         of both the Mermaid and the Poop Deck. Pro-
         vide signage at each restroom door indicating
         location of accessible restroom.

The agreement required Defendants to complete all modifica-
tions by June 30, 2006. In addition, the agreement provided
that “[t]he issues of attorneys’ fees, costs and litigation
expenses remain before the court” and that the district court
retained jurisdiction to enforce the terms of the agreement.

  On April 21, 2006, the district court accepted the settlement
agreement:

       Plaintiff LES JANKEY, by and through his coun-
    sel, and defendants QUENTIN L. THELEN and
    THE POOP DECK INC., by and through their coun-
    sel, stipulate to dismissal of this action in its entirety
    with prejudice pursuant to Fed. R. Civ. P. 41(a)(1).
    The issue of plaintiff’s attorneys’ fees, costs and liti-
    gation expenses shall be resolved by plaintiff filing
    a motion for reasonable attorneys’ fees, costs and lit-
    igation expenses with the court. The parties further
    consent to and request that the Court retain jurisdic-
    tion over enforcement of the parties’ Equitable Set-
    tlement Agreement and Release.
10424                 JANKEY v. POOP DECK
        ....

       IT IS HEREBY ORDERED that matter is dis-
    missed with prejudice pursuant to Fed. R. Civ. P.
    41(a)(1). IT IS FURTHER ORDERED that the
    Court shall retain jurisdiction for the purpose of
    enforcing the parties’ Settlement Agreement and
    General Release should such enforcement be neces-
    sary.

(Citation omitted.)

   On May 5, 2006, Plaintiff filed a Notice of Motion and
Motion for Award of Reasonable Attorneys’ Fees, Including
Litigation Expenses and Costs. In a memorandum in support
of his motion, Plaintiff argued that he was entitled to attorney
fees as a prevailing party because the settlement agreement
“legally obligates defendants to provide fully accessible
accommodations and/or facilities at The Poop Deck” and,
“[a]s a term of the parties’ settlement is for the federal court
to retain full jurisdiction over enforcement of the agreement,
the settlement agreement has the necessary judicial imprima-
tur.”

   Defendants opposed Plaintiff’s fee request. They argued
that the district court should exercise its discretion to deny
Plaintiff’s request because he did not provide prelitigation
notice and because Defendants proposed a prompt resolution
of the access issues. Alternatively, Defendants argued that
Plaintiff was not a prevailing party under Supreme Court and
Ninth Circuit precedent and that Plaintiff’s request for fees
was unreasonable because Defendants proposed the final
modifications six months before Plaintiff accepted them.

  The district court denied Plaintiff’s Motion for Award of
Reasonable Attorneys’ Fees, Including Litigation Expenses
and Costs. The court ruled:
                      JANKEY v. POOP DECK                   10425
        In A.D.A. cases the Court may decline to award
     attorney’s fees and costs to the prevailing plaintiff
     when such an award would be unjust.

       Here plaintiff has failed to provide prelitigation
     notice and has unreasonably protracted litigation by
     waiting nearly five months to reply to defendants’
     proposal remedy of the A.D.A. violation. Mr.
     Frankovich and his firm’s abusive litigation tactics
     have been well documented. The purpose of the
     A.D.A. is to ensure accessibility to public accommo-
     dations for disabled individuals, not to enrich attor-
     neys.

        Because an award of attorney’s fees and costs
     under the circumstances would be unjust, the plain-
     tiff’s motion is denied.

Plaintiff timely appealed the district court’s denial of his
motion for attorney fees.

                 STANDARDS OF REVIEW

   We review de novo the legal standard applied by a district
court to rule on a request for attorney fees. Thomas v. City of
Tacoma, 410 F.3d 644, 647 (9th Cir. 2005). We also review
de novo questions of law underlying that decision. Id. We
review for clear error questions of fact resolved by the district
court. Id. If the district court applied the correct legal standard
and if its findings of fact were not clearly erroneous, then we
review for abuse of discretion the district court’s decision on
the award of attorney fees. Id.

                         DISCUSSION

A.   Plaintiff was a prevailing party.

   As a threshold matter, Defendants argue that we should
affirm the denial of fees because Plaintiff was not a “prevail-
ing party” under the ADA. We disagree.
10426                 JANKEY v. POOP DECK
   [1] In a case pursued under the ADA, a court, “in its discre-
tion, may allow the prevailing party . . . a reasonable attor-
ney’s fee.” 42 U.S.C. § 12205. “[F]or a litigant to be a
‘prevailing party’ for the purpose of awarding attorneys’ fees,
he must meet two criteria: he must achieve a material alter-
ation of the legal relationship of the parties, and that alteration
must be judicially sanctioned.” P.N. v. Seattle Sch. Dist. No.
1, 474 F.3d 1165, 1172 (9th Cir. 2007) (internal quotation
marks omitted). In other words, the alteration must have a “ju-
dicial imprimatur.” Buckhannon Bd. & Care Home, Inc. v. W.
Va. Dep’t of Health & Human Res., 532 U.S. 598, 605 (2001).

   [2] Here, the district court dismissed Plaintiff’s case pursu-
ant to a settlement agreement between the parties under which
the court retained jurisdiction to enforce the settlement.
Defendants argue that those actions by the district court do
not constitute a sufficient judicial imprimatur. That argument
is foreclosed by Skaff v. Meridien North America Beverly
Hills, LLC, 506 F.3d 832 (9th Cir. 2007) (per curiam). There,
we held that a “settlement agreement and the district court’s
order dismissing the case[, which] provided that the district
court would retain jurisdiction to enforce the agreement,” sat-
isfied the requirements of Buckhannon to render the plaintiff
a prevailing party under the ADA. Id. at 844 & n.12. The set-
tlement agreement in this case both authorized judicial
enforcement of its terms and expressly referred resolution of
the issue of attorney fees to the district court.

   Alternatively, Defendants argue that the settlement agree-
ment did not meaningfully alter the legal relationship between
the parties because, by the time the parties signed the settle-
ment agreement, the only modifications that Defendants had
not completed were construction of the accessible restroom in
the Mermaid Restaurant and signage about that restroom in
the Poop Deck. Defendants reason that Defendant Thelen
already was bound to construct the restroom by a settlement
agreement in Plaintiff’s action against the Mermaid Restau-
rant and, therefore, that the settlement agreement in this case
                      JANKEY v. POOP DECK                  10427
obligated Defendants to do nothing that they had not previ-
ously completed or were obligated to complete.

   [3] Defendants are mistaken. A settlement agreement
meaningfully alters the legal relationship between parties if it
allows one party to require the other party “to do something
it otherwise would not be required to do.” Fischer v. SJB-P.D.
Inc., 214 F.3d 1115, 1118 (9th Cir. 2000). Defendants’ argu-
ment, on its face, acknowledges that the Mermaid settlement
agreement did not bind Defendants Poop Deck and The Poop
Deck Inc. to construct an accessible restroom. Plaintiff had
the authority to require them to do so—and to do so by June
30, 2006—under, and only because of, the settlement agree-
ment at issue here. In addition, the instant settlement agree-
ment, and only that agreement, bound Defendants to install
the appropriate signage in the Poop Deck informing patrons
about the accessible restroom located in the Mermaid Restau-
rant and to inform Frankovich when all of the agreed modifi-
cations were completed. Thus, Plaintiff was the prevailing
party on his ADA claim.

B.   The district court erred in denying Plaintiff attorney fees.

   [4] “The Supreme Court has explained that[,] in civil rights
cases, the district court’s discretion is limited.” Fischer, 214
F.3d at 1119 n.2. A prevailing plaintiff under the ADA
“ ‘should ordinarily recover an attorney’s fee unless special
circumstances would render such an award unjust.’ ” Barrios
v. Cal. Interscholastic Fed’n, 277 F.3d 1128, 1134 (9th Cir.
2002) (quoting Hensley v. Eckerhart, 461 U.S. 424, 429
(1983)).

   “Congress passed the ADA in 1990 to provide clear,
strong, consistent, enforceable standards addressing discrimi-
nation against individuals with disabilities.” Molski v. M.J.
Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007) (citation and
internal quotation marks omitted). And Congress enacted the
fee-shifting provisions of civil rights statutes “to ensure effec-
10428                 JANKEY v. POOP DECK
tive access to the judicial process for persons with civil rights
grievances.” Hensley, 461 U.S. at 429 (internal quotation
marks omitted). “If successful plaintiffs were routinely forced
to bear their own attorneys’ fees, few aggrieved parties would
be in a position to advance the public interest by invoking the
injunctive powers of the federal courts.” Newman v. Piggie
Park Enters., Inc., 390 U.S. 400, 402 (1968) (per curiam).
Consequently, recovery is “the rule rather than the exception.”
Herrington v. County of Sonoma, 883 F.2d 739, 743 (9th Cir.
1989) (order) (internal quotation marks omitted).

  The district court applied the correct legal standard to
Plaintiff’s request for attorney fees under the ADA, asking
whether an award of fees to Plaintiff would be unjust. How-
ever, Plaintiff argues that the district court erred by consider-
ing the lack of prelitigation notice in making that decision.

   In Skaff, 506 F.3d at 844, we reviewed a district court’s
denial of an award of attorney fees where the court “did not
explicitly indicate the significance of the fact that [the plain-
tiff] did not give pre-suit notice . . . [but] apparently viewed
pre-suit notice as a prerequisite to recovering attorneys’ fees
under the ADA.” (Emphasis added.) We “h[e]ld that the ADA
contains no such notice requirement, and . . . decline[d] to
imply one.” Id. We reasoned:

       The text of the ADA contains no pre-suit notice
    requirement. If Congress believes it is preferable as
    a matter of policy to require plaintiffs to give notice
    to defendants before filing an ADA suit, it is free to
    amend the Act. . . . Unless and until Congress sees
    fit to engraft a notice requirement onto the ADA, we
    apply the ADA as written without a pre-filing notice
    requirement.

Id. at 844-45. We vacated the district court’s order denying an
award of attorney fees and remanded for “the district court
[to] consider the merits of [the plaintiff]’s motion.” Id. at 846.
                      JANKEY v. POOP DECK                   10429
   [5] Unlike in Skaff, the district court here did not purport
to require prelitigation notice. Instead, this case presents a
question of law left open by Skaff—whether the ADA allows
a district court to consider lack of prelitigation notice as a fac-
tor in its special-circumstances analysis in determining
whether a request for attorney fees under the ADA would be
unjust.

   [6] Denying attorney fees altogether as “unjust” because of
a lack of prelitigation notice would constitute, in essence, a
sanction for failing to provide notice. But as we held in Skaff,
the ADA does not require prelitigation notice. Litigants and
their lawyers should not be penalized for failing to meet a
purported technical requirement that does not exist. And fail-
ing to provide prelitigation notice cannot, by itself, be consid-
ered harrassing or improper because the ADA permits the
conduct. Nor does it matter whether the district court consid-
ers the lack of notice in conjunction with other adverse con-
siderations. If the other conduct is sufficient to render a fee
award unjust, then the lack of prelitigation notice need not be
considered; if the other conduct is not sufficient, then the lack
of prelitigation notice would be, in the end, what justifies
denying fees, in contravention of Skaff.

   [7] We therefore hold that a district court may not use a
lack of prelitigation notice as a factor in determining whether
to deny as unjust a request for attorney fees under the ADA.
Here, the district court erred when it used Plaintiff’s failure to
provide prelitigation notice as a factor to deny him attorney
fees as a prevailing plaintiff.

   [8] The district court also denied fees because it found that
Plaintiff unreasonably protracted the litigation, but unreason-
ably prolonging a legitimate suit is a reason to reduce fees,
not to deny them altogether. That successful litigation took
longer than necessary does not render “unjust” an award of
fees in some amount. See Hensley, 461 U.S. at 434 (“The dis-
trict court . . . should exclude from th[e] initial fee calculation
10430                 JANKEY v. POOP DECK
hours that were not reasonably expended.” (internal quotation
marks omitted)). In addition, here, the court below stated that
the “abusive litigation tactics [of Plaintiff’s counsel] have
been well documented.” To the extent that the court was
referring to Plaintiff’s lack of prelitigation notice and his pro-
traction of the litigation, we already have explained that nei-
ther reason justifies an outright denial of fees. To the extent
that the court was referring to Plaintiff’s counsel’s numerous
other lawsuits in the Central District of California, those cases
are not a part of the record here.

   [9] Consequently, the district court proffered no legitimate
factor that would constitute a special circumstance to render
an award of attorney fees unjust. We therefore reverse the dis-
trict court’s denial of Plaintiff’s request for fees and remand
for a calculation of reasonable attorney fees.

C.    The district court has discretion to reduce Plaintiff’s fee
      award.

     On remand,

      the district court has discretion in determining the
      amount of [the] fee award. This is appropriate in
      view of the district court’s superior understanding of
      the litigation and the desirability of avoiding fre-
      quent appellate review of what essentially are factual
      matters. It remains important, however, for the dis-
      trict court to provide a concise but clear explanation
      of its reasons for the fee award.

Hensley, 461 U.S. at 437.

   [10] “The most useful starting point for determining the
amount of a reasonable fee is the number of hours reasonably
expended on the litigation multiplied by a reasonable hourly
rate.” Id. at 433. But “[t]he district court . . . should exclude
from th[e] initial fee calculation hours that were not reason-
                      JANKEY v. POOP DECK                  10431
ably expended.” Id. at 434 (internal quotation marks omitted).
In other words, the court should exclude “hours that [we]re
excessive, redundant, or otherwise unnecessary.” Id. Conse-
quently, although the district court erred in considering Plain-
tiff’s protraction of the litigation in deciding whether to deny
fees, the court may consider whether Plaintiff protracted the
litigation in deciding whether to reduce fees.

    [11] In addition, we clarify that a district court may, in its
protraction analysis, consider whether a plaintiff provided
prelitigation notice. Prelitigation notice is not required, and
failing to provide notice is not unjust, but district courts have
discretion to consider all kinds of non-required conduct in
deciding whether litigants have protracted litigation. For
example, there is no legal requirement that a lawyer respond
to telephone calls, but it would not unduly penalize a lawyer
to consider such conduct in finding that the lawyer unreason-
ably protracted litigation. Similarly, while a district court may
not reduce fees on the premise that the suit should not have
been filed at all before providing notice, it does have discre-
tion to determine whether failing to provide prelitigation
notice resulted in unnecessary fees during the course of the
litigation—that is, fees that would have been lower had there
been notice before filing. Accord Ass’n of Disabled Ams. v.
Neptune Designs, Inc., 469 F.3d 1357, 1360 (11th Cir. 2006)
(per curiam).

   Of course, a determination that the lack of prelitigation
notice resulted in unnecessary fees during the litigation must
be explained, and the excessive fees identified. See Hensley,
461 U.S. at 437 (“[T]he district court [should] provide a con-
cise but clear explanation of its reasons for the fee award.”).
As we recently noted, in reviewing a fee reduction for dupli-
cative work,

    if the court believes the overall award is too high, it
    needs to say so and explain why, rather than making
    summary cuts in various components of the award.
10432                 JANKEY v. POOP DECK
    While we accord deference to the district court’s
    explanation of why a requested fee is excessive, we
    can only do so if the district court provides an expla-
    nation that we can meaningfully review. Findings of
    duplicative work should not become a shortcut for
    reducing an award without identifying just why the
    requested fee was excessive and by how much. As
    the reduction passes well beyond the safety zone of
    a haircut, which plaintiff’s counsel seems to have
    given herself already, the district court’s justification
    for the cuts must be weightier and more specific.

Moreno v. City of Sacramento, No. 06-15021, 2008 WL
2875300, at *4 (9th Cir. July 28, 2008). Similarly, the lack of
prelitigation notice “should not become a shortcut for reduc-
ing an award,” id. at *4, and is a permissible consideration
only if it is specifically connected to a reason why the lawsuit,
once filed, would have been resolved more cheaply.

    Here, it is evident on the current record that the lack of pre-
litigation notice did not result in the incurring of any unneces-
sary fees during the litigation. Defendant did not initiate
settlement discussions until seven months after the lawsuit
was filed, and there is no reason to believe Defendant would
have responded any more quickly once the complaint was
filed had there been notice first. Nor is there a showing that
the lack of notice caused Plaintiff’s attorney unnecessarily to
incur any fees once the case was filed. Where, as here, the
lack of prelitigation notice neither caused nor contributed to
the accumulation of unnecessary fees once the case was filed,
it cannot be the basis for reducing a fee award. See Hensley,
461 U.S. at 434 (“The district court . . . should exclude from
th[e] initial fee calculation hours that were not reasonably
expended.” (internal quotation marks omitted)).

   The record does support a possible different basis for
reducing the fee award: the district court’s finding that Plain-
tiff’s conduct after the lawsuit was filed unreasonably pro-
                     JANKEY v. POOP DECK                  10433
tracted the litigation, a finding that Plaintiff challenges on
appeal. We “must accept the district court’s factual findings
absent a definite and firm conviction that a mistake has been
committed.” Alcala v. Woodford, 334 F.3d 862, 868 (9th Cir.
2003) (internal quotation marks omitted). No mistake
occurred here.

   In the questionable letter that Frankovich sent Defendants
with the complaint, he expressed: “We do not want to see The
Poop Deck Inc. waste its money on needless litigation. We
want access agreed to now, not later.” And yet, after Moroney
proposed access modifications in June 2005—modifications
in some respects more expansive than those requested by
Plaintiff—the uncontroverted record demonstrates that
Frankovich and Adams waited more than four months to
respond to the proposal.

   In his initial proposal, Moroney explained why feedback on
the modifications was both important and time-sensitive and
expressed his clients’ motivation to settle. But Moroney’s
July 26, 2005, letter went unanswered. His August 23, 2005,
letter went unanswered. His October 7, 2005, letter went
unanswered, even though Moroney expressed a desire and
willingness to settle the access issues in advance of the sched-
uled mediation session. His November 1, 2005, e-mail went
unanswered. His November 4, 2005, letter finally received a
response, after emphasizing the importance of receiving feed-
back before the mediation, so that the effort would be produc-
tive.

   On November 8, 2005, Frankovich and Adams responded
to, and accepted, Moroney’s proposed access modifications.
But two days before the scheduled mediation session,
Frankovich withdrew his acceptance because Poop Deck cus-
tomers would have to go outside to reach the accessible rest-
room located in the Mermaid Restaurant—a fact that had been
a part of Moroney’s proposal from the very beginning.
Frankovich’s withdrawal forced Moroney to reschedule the
10434                 JANKEY v. POOP DECK
mediation, as Moroney’s letters had stated would be neces-
sary if Frankovich objected to the proposed modifications on
the eve of mediation. Moroney once again struck a concilia-
tory and practical tone, requesting that the parties’ contractors
“have a discussion via phone, without lawyers, to see whether
they can reach common ground on what is readily achievable
to the Poop Deck restroom issue”—a request that Frankovich
denied.

   On December 2, 2005, Frankovich again agreed to
Moroney’s proposed modifications but would not put any-
thing in writing to that effect. Only after Moroney raised the
specter of a motion for summary judgment and attorney fees
for requiring the filing of such a motion did Frankovich and
Adams propose a settlement agreement. The agreement con-
sisted of five access modifications, three of which Defendants
already had completed, and all five of which Defendants had
proposed six months earlier.

   [12] In summary, Plaintiff requested access, and Defen-
dants proposed modifications to provide it. After four months
of silence by Plaintiff, and two months in which Plaintiff
accepted and then unaccepted the proposal, Plaintiff finally
proposed a settlement agreement that essentially restated the
modifications that Defendants had placed on the table six
months earlier. In the face of those facts, the district court did
not clearly err in determining that Plaintiff unreasonably pro-
tracted the litigation in this case. Plaintiff argues that the
delay was reasonable because he “was attempting to resolve
not only this underlying action, but also another action in
which [Defendant] Quentin Thelen was named as a defendant,
Jankey v. Mermaid Restaurant.” But Plaintiff does not explain
why those efforts resulted in four months of silence, particu-
larly because Defendants’ proposed restroom would have
resolved both cases simultaneously—it was located in the
Mermaid Restaurant—nor does he create a “definite and firm
conviction that a mistake has been committed.” Alcala, 334
F.3d at 868.
                    JANKEY v. POOP DECK                10435
   [13] We leave to the district court’s discretion—applying
the standards enunciated in Hensley and Moreno, as discussed
above—whether, and to what extent, Plaintiff’s protraction of
the litigation should affect his award of attorney fees.

  REVERSED and REMANDED.
