Although we frequently write about the Americans with Disabilities Act, we rarely write about Title III of the ADA which requires places of public accommodation to be barrier-free to disabled persons. Title III of the ADA can be very complicated to understand and as a result claims of violations have become a bit of a cottage industry for some plaintiffs’ attorneys.
There are, to be sure, legitimate claims by disabled persons that they cannot access a building. However, unfortunately business owners have also discovered that there are certain repeat attorneys paired with the same plaintiff who file dozens of ADA lawsuits.
I once handled a public accommodation case for a client and discovered as we were gathering facts that the case filed against my client was the 82nd lawsuit filed by the plaintiff and his attorney in less than a year period. Even disability rights organizations have labeled these claims “drive-by lawsuits,” noting that the filing of such lawsuits does not appear designed to make the community more inclusive of disabled persons.
These lawsuits have been roundly criticized by business owners as they are usually filed after the plaintiff’s attorney’s hired expert has gone through the facility and come up with a checklist of supposed violations. This is often done even where the disabled plaintiff has not actually entered the building. Most public accommodation claims are settled as it is rare to find that there is no violation. The violation can often be something as simple as a required sign fell down, resulting in a technical violation.
So what is a business owner to do in defending against one of these cases?
- Get your own architect — Without an expert in Title III, you may be at the mercy of the plaintiff’s hired gun.
- If you are a tenant, check your lease agreement — These lawsuits are usually filed against both the landlords and tenants. It is important to determine early on who might be liable for the violations.
- Evaluate your legal strategy and be aggressive where warranted — If faced by one of these “drive-by lawsuits,” you may want to consider not simply resolving the claim as is done in the vast majority of the cases. An important note to remember is that in order to prevail, plaintiffs must not only demonstrate that there is a violation, the plaintiffs must also demonstrate that they plausibly intend to return to the place where they previously encountered an ADA violation, or show that there is a likelihood of discrimination should they return to that place. Where a plaintiff is complaining that one of your multiple locations is not wheelchair accessible and you discover that the Plaintiff has never been in the locations right where he works or lives even though they are wheelchair accessible that may be evidence the plaintiff really does not intend to do business with you. Since the law is a strict liability statute, once any violation is found, no matter how small, the plaintiff may be entitled to attorneys’ fees, so you will want to be careful before you increase the attorneys’ fees by going through discovery.
Another option where you seem to have multiple filings by the same attorney is to focus on the attorney. Recently our firm took that tack and opposed the pro hac vice admission of an out-of-state attorney who filed an application to be temporarily admitted in New Jersey. The federal court judge, who granted our motion and denied the special admission, noted that the Florida attorney seemed to be avoiding the New Jersey bar rules by using this special admission 24 times in a two-year period. Although this does not mean that a case goes away, making it difficult for serial filers may mean that future claims are less about a quick buck for the plaintiff and his or her attorney and more about addressing serious violations of the ADA.