By Georgia Buckhalter Thompson, Richman Greer
While the Americans with Disabilities Act (the “ADA”) is an important statute designed to give persons with disabilities an equal opportunity to access and enjoy places of public accommodation, the statue might also be seen as a curse by shopping center owners who have encountered the unfortunate reality of the serial ADA litigant. Record numbers of lawsuits are being filed by a small group of plaintiffs and lawyers who have partnered together to file dozens, or even hundreds, of ADA accessibility suits in federal courts. Although the ADA does not authorize an award of damages to a private plaintiff, it does allow them to recover their attorneys’ fees and costs, making these fee-driven lawsuits a profitable industry and incentivizing unscrupulous plaintiffs and lawyers to pursue serial and abusive ADA litigation against shopping centers and other commercial properties.
These serial filers are known to drive around from business to business solely for the purpose of identifying violations and bringing suit. Shopping center owners say they are being extorted by a handful of serial filers more concerned with generating fees and profits than with making public facilities accessible to the disabled. In addition to the cost of achieving compliance with the law, defendant businesses are responsible for their own defense costs and the plaintiff’s costs. Often, these litigation costs are greater than the cost of the remediation ordered to be completed.
Moreover, the mere filing of an ADA lawsuit can alert other serial litigants to potential violations of the law, resulting in the filing of multiple lawsuits against the same defendant for the same violations—and creating an obligation to pay attorneys’ fees to multiple plaintiffs’ lawyers. In these cases, shopping center owners are bombarded with serial lawsuits faster than they can draft plans, obtain permits, hire contractors and fix violations.
Unfortunately, there is no mechanism in place to prevent such exploitation of the law.
Filers allege technical violations of the law’s accessibility requirements, ranging from wheelchair ramps that are too steep, to service counters and paper towel dispensers that are too high, and bathrooms and doorways that are too narrow. Not all of these suits are brought in bad faith; many are brought by disability-rights groups and disabled individuals who are genuinely committed to achieving accessibility.
Regardless of the motive of the plaintiff, with the number of ADA filings (both legitimate and illegitimate) on the rise, shopping centers must prepare their strategies for avoiding or defending against serial ADA litigation.
The only sure way to avoid serial or abusive ADA litigation is for owners and operators of shopping centers to conduct audits of their properties and correct any violations before falling victim to a lawsuit—or multiple lawsuits as the case may be. Identifying and correcting violations before they become a problem costs far less than litigating the case and ultimately making these same corrections. In these situations, an ounce of prevention is worth a pound of cure.
If a lawsuit has already been filed, the defendant can attempt to quickly remedy all of the claimed ADA violations prior to entry of a judgment, in which case the plaintiff will not be entitled to collect fees and costs.
Resolving Multiple Suits
If a property owner is simultaneously defending multiple lawsuits based on the same violations, the defendant might seek to avoid duplicative litigation—and accumulation of duplicative attorneys’ fees—through the following strategies.
Generally, successive plaintiffs are not bound by a resolution reached in an earlier-filed lawsuit because the parties and claims are not identical. However, a defendant might be able to make a persuasive argument in favor of staying the later-filed action pending resolution and remediation in the first where such remediation will cure all violations at issue in the latter and ultimately render the latter action moot.
Occasionally, a later-filed action will assert new or different claims in addition to those in the first-filed action. In these situations, the defendant may seek to structure a comprehensive settlement or resolution of the first action so that settlement of the first action resolves all violations raised in the second action.
Where all compliance issues are resolved in an earlier-filed lawsuit and no affirmative relief is granted in the latter action, the latter plaintiff should not be entitled to collect fees and costs.
Notice of Related Cases
Another strategy is to put the plaintiffs on actual notice of all pending related cases. Some judges will require the parties to conduct a search of the court records and file a Notice of Related Case—though this is not universal practice and it is unclear what action a judge might take upon discovery of a related suit. Nevertheless, a defendant should still put the plaintiff and the court on notice of all related cases.
Additionally, because these are largely fee-driven claims, the defendant might submit a written request to plaintiff’s counsel in the later-filed action requesting that they dismiss their complaint on grounds that the issues raised are already covered by and being remediated in a previously filed matter, and that they refrain from expenditure of unnecessary work and time in an obvious effort to generate fees.
These strategies might be helpful in mitigating the obligation to pay unnecessary and duplicative attorneys’ fees in the subsequently filed lawsuits.
Consolidation of Related Cases
Finally, a defendant might seek to consolidate multiple suits for reassignment to a single judge. While consolidation should limit some of the duplicative fee exposure, it will not altogether avoid an obligation to pay multiple plaintiffs’ attorneys’ fees.
If the courts are unable to prevent the filing of the thousands of serial and abusive ADA lawsuits by a handful of unscrupulous plaintiffs and attorneys, it is up to businesses to protect themselves by planning ahead and developing strategies for avoiding or defending themselves against the rising tide of serial ADA litigation.
— Georgia Buckhalter Thompson is an attorney at the Miami office of Florida law firm Richman Greer. She focuses her practice in the areas of commercial and complex civil litigation. She may be reached at [email protected].