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Strategies for Avoiding or Defending ADA “Drive-by” Lawsuits


Some Hope to Restaurants and Retailers


by Ariel Cudkowicz


Whether you own or operate hotels, restaurants or large retail stores, or own and develop property for these, you are at risk. Record numbers of suits by a small group of disabled individuals and not-for-profit organizations alleging technical violations of Title III of the American’s With Disabilities Act are being filed against owners and operators. Title III contains the law’s accessibility requirements for public buildings – such as the size of public bathrooms, the height of service counters, and the use of wheelchair ramps. Some plaintiffs have filed dozens – or even hundreds – of lawsuits alleging that they were denied full use of a restaurant, hotel or retail establishment because it was not ADA compliant. These so-called “drive-by” lawsuits (named because the suits are filed by people with no real interest in patronizing the particular restaurant, store or hotel) have spawned a cottage industry of plaintiff’s law firms which “partner” with a disabled individual to bring ADA claims in federal court, asking the court to order the business to correct the problem immediately, and pay the plaintiff’s lawyers their attorney’s fees. Many “serial filers” add disability claims under state laws– which provide for individual damages – increasing the possible monetary recovery.

The Problem

The ADA makes these cases lucrative for plaintiffs’ attorneys. Currently, the law does not even require a potential plaintiff to give the targeted facility notice of the alleged violation before filing suit. Although many of the violations could be easily and inexpensively fixed, a plaintiff can only recover attorney’s fees if there is a pending lawsuit, so disabled individuals rarely give notice. Such is the rush to the courthouse that some judges are beginning to see competing claims by various plaintiffs’ firms and groups over the same location. Based on statistics from filed cases, for most, the restaurant or corporate owner has no idea about the compliance issue until it is served with the lawsuit.

The number of accessibility cases filed by a small group of individuals is staggering. A judge in Florida who presided over one of these cases noted that in his district alone, 579 accessibility cases had been filed by less than a dozen plaintiffs, with the same attorneys often in charge of 50 or more cases at one time. Another Miami firm has accessibility suits pending in nearly every state in the country, often with the same plaintiff.

Of course, not every ADA accessibility lawsuit is brought by a serial filer backed by an aggressive lawyer – many disability rights groups and disabled individuals have a genuine concern about accessibility and compliance with the ADA. But it can be difficult to tell the difference between a legitimate, one-time complaint by a disabled patron and the individual who visited the restaurant solely for the purpose of finding a violation, although its more likely that a real patron would say something before filing a lawsuit. Regardless, the motive of the plaintiff doesn’t matter. Unfortunately, after a case is filed, it is too late to remedy any violation without incurring attorneys’ fees (no matter how easy or inexpensive a remedy would be). In simple terms, the plaintiff must only show that he or she realistically intends to return to the property again in order to enjoy its services, and that his or her enjoyment is prevented by the lack of accessibility.

Defense Strategies

Defendants are beginning to use the courts themselves to combat “frequent filers”. The most successful strategies include: 1) Asking the court to declare a plaintiff a “vexatious litigant”, and 2) arguing that the defendant should not have to pay attorney’s fees because it could have easily and inexpensively fixed the problem without a lawsuit. Several judges in California have embraced such methods for dealing with particularly egregious situations.

Motion to find a plaintiff a vexatious litigant

Two different plaintiffs in California have been identified by judges as vexatious litigants, and ordered to obtain the judge’s permission before filing another lawsuit. Included in one order is the requirement that the plaintiff also provide any target business with notice of the alleged violation and a reasonable time to cure it. Each plaintiff had filed nearly fifty accessibility lawsuits per year for the past three to six years. Although dozens had been dismissed or withdrawn, (presumably settled privately), none had gone to trial. Further, the courts noted that each lawsuit was markedly similar to others filed by the plaintiff, and that they all alleged identical emotional injuries, but no physical ones. In one case, a plaintiff alleged as many as three separate injuries in a single day; the other plaintiff alleged seven individual injuries (resulting in seven different lawsuits) in one week. See, Carlock v. Collins Motors, Inc. No. 04 CV 370-J (S.D.Cal. May 2, 2005); Molski v. Mandarin Touch Restaurant, 347 F. Supp. 2d 860 (C.D.Cal. 2004).

Enjoining a plaintiff from filing suit unless he or she first obtains permission from the court is a drastic remedy, and it will only be imposed on plaintiffs who truly abuse the court system. However, if the courts are able to prevent the filing of the several hundred “drive-by” lawsuits attributable to a handful of plaintiffs and attorneys, judicial resources can be redirected toward legitimate matters, including true violations of the ADA’s accessibility guidelines.

Pre-litigation notice

Although it is not required by the ADA, a few courts have also denied attorneys’ fees to successful plaintiffs on the ground that they did not provide the defendant with notice of the alleged violation and a reasonable opportunity to cure it. The courts rely on a section of the ADA, which gives courts the discretion to award attorneys’ fees to the winning party. In the particular cases, the courts questioned the motives of the plaintiffs who rushed to file lawsuits, when a simple letter to the target entity would have fixed the alleged violation in a much more efficient and cost-effective manner. See, Doran v. Del Taco, Inc., --F. Supp. 2d--; 2005 WL 1389270 (C.D.Cal. June 9, 2005); Macort v. Checker Drive-In Rests., Inc., 2005 WL 332422 (M.D.Fla. January 28, 2005) (unpub.).

Lack of standing

A third tactic involves the defense that a plaintiff is not allowed to bring a lawsuit under the ADA because he or she does not really intend to return to the location. In a case brought by a plaintiff who was later labeled a vexatious litigant by another court, the judge ordered the plaintiff to produce copies of the several hundred complaints that had been filed on his behalf in the previous two years. Molski v. Franklin, 222 F.R.D. 433 (S.D.Cal. 2004). These kinds of challenges are difficult. Even in cases involving vexatious litigants, most courts have found that the plaintiff did indeed intend to return to the restaurant at issue if it came into compliance with the ADA, and thus, he or she had standing to sue.

Legislative Developments

In the wake of so much litigation, the push for reform of the ADA is growing stronger, but is still meeting some stiff opposition. Several bills designed to create a 90-day notice period during which a public business may fix any violations before a suit is filed have made little headway in Congress, but the movement for reform is gaining momentum. The National Restaurant Association recently announced that it has made addressing the rash of drive-by lawsuits a priority. It hopes to work with the disabled community and state and federal legislators to craft a solution that allows entities time to fix violations before suit is filed, but does not weaken the purpose of protections of the ADA. One concern of the disabled community is that giving businesses a remediation window will reduce the incentive for voluntary compliance before a lawsuit is filed.

In July 2004, the Department of Justice issued a notice of proposed rulemaking to revise the ADA accessibility guidelines. The guidelines establish the architectural requirements for providing physical access to persons with disabilities. The comment period for the proposed rules closed in January 2005 and so far, the DOJ has not issued its final rules. But they are coming, and all developers, contractors, architects and other enterprises that own or lease commercial property will need to familiarize themselves with the new guidelines to make sure their buildings are in compliance. We will post these guidelines on our website at www.seyfarth.com when they are available. The new guidelines will deal not only with new construction and modifications of existing facilities, but will also require the removal of existing architectural barriers. Buildings that are in compliance now may no longer be in compliance once the guidelines are implemented. We will keep you updated about the status and specific requirements of the new guidelines when they become final.

Avoiding Suit

In the meantime, owners and operators of retail businesses, including restaurants and hotels are urged to conduct audits of their property’s compliance with Title III, before falling victim to a lawsuit. Attorneys and architects familiar with the law can assist with the discovery and correction of violations before they become a problem. Attention to compliance issues is particularly important any time a business undertakes structural improvements, or additions, or ownership changes since the construction or transfer of control may trigger new obligations for accessibility that did not previously exist.

Mr. Cudkowicz is a partner in the Labor and Employment Practice Group at Seyfarth Shaw LLP. Mr. Cudkowicz represents a number of retailers, hotels and restaurants, and provides advice, counseling and litigation defense under Title III of the ADA, federal and state wage & hour law, as well as federal and state anti-discrimination laws.

Ariel D. Cudkowicz, Esq.

(617) 946-4884

(617) 946-4801 general fax

(617) 790-5383 direct fax

(617) 413-0123 cell

acudkowicz@seyfarth.com





           

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