Serial Plaintiffs Are Filing Waves of Disability Cases

Hotels, restaurants and retail establishments have team of paper peoplebeen flooded with new lawsuits filed by serial plaintiffs that allege that a property (a place of public accommodation) is in violation of Title III of the Americans with Disabilities Act (ADA) or the equivalent state law, such as the Arizonans with Disabilities Act (AzDA).

Nearly identical allegations are filed against businesses throughout the state, and they usually allege that an individual with a disability either visited a business or attempted to visit a business, but was unable to do so due to a barrier on the property. In other words, the plaintiff is alleging that the company/defendant failed to comply with some aspect of the ADA Accessibility Guidelines (ADAAG). Examples of common barriers that are raised in these lawsuits are: (1) that a parking lot does not have a sufficient number of disabled or van accessible spaces or parking signs (or the signs are not high enough); (2) some part of the exterior of the property or the front door is inaccessible or improperly sloped; or (3) the restroom is not accessible—perhaps a stall is not wide enough or there is no disabled restroom at all. Typically, the plaintiff requests that the court provide it with injunctive relief (i.e., the defendant has to fix the property), compensatory damages (not available under federal law but, in limited circumstances, damages may be available under state law), and attorneys’ fees and costs.

The premise of these lawsuits is simple enough, but the complexity becomes apparent as businesses realize there is no one-size-fits-all response.

Why are serial plaintiffs even bringing these lawsuits?

There are a couple of answers here. The law provides a private cause of action to plaintiffs because there are simply too many buildings and places of public accommodation for the government to be able to efficiently monitor each and every one. Individual plaintiffs are able to bring multiple cases under the ADA to ensure that they and others are not harmed by businesses that fail to comply with the law. Even the idea of serial litigation is contemplated under the law. The Ninth Circuit explained that “[f]or the ADA to yield its promise of equal access for the disabled, it may indeed be necessary and desirable for committed individuals to bring serial litigation advancing the time when public accommodations will be compliant with the ADA.”[1] However, the Ninth Circuit includes this caution: “But as important as this goal is to disabled individuals and to the public, serial litigation can become vexatious when . . . a large number of nearly-identical complaints contain factual allegations that are contrived, exaggerated, and defy common sense.”[2]

Some people feel that these lawsuits are an attempt by plaintiffs’ attorneys to cash in on the attorneys’ fees provision under the ADA. Finding one area of noncompliance on a property can arguably permit a plaintiff to bring his or her expert and conduct a full-site inspection to uncover more issues. Unless the lawsuit is groundless or frivolous, plaintiffs know they likely will not be responsible for the defendants’ fees and, in fact, they may have an opportunity to recover fees from defendants in certain circumstances. Because of this, these cases are often settled prior to trial and attorneys’ fees may be a significant portion of that settlement.

Do businesses have defenses when these lawsuits are filed against them?

Absolutely. There are many issues to consider when a lawsuit is filed. The threshold issue is whether the company can make the necessary changes to bring the subject property into compliance so that individuals with disabilities do not encounter any barriers to access. In addition, there are many other issues to consider. When was the subject property built? When, if ever, was it altered? Is it a historic property? Does the plaintiff have standing? Are there non-parties at fault? Are plaintiff’s requests structurally impracticable? Are there equivalent services offered? While there are instances when companies must be in strict compliance with the ADA, there are also exceptions when strict compliance is not feasible or necessary. All these factors, and more, can help build a company’s defense—that it is properly complying with the ADA.

How do businesses know if they are going to be sued?

Sometimes plaintiffs’ attorneys will send out notices in advance—stating that a property is not in compliance. Other times, no notice will be sent. Since plaintiffs often have their experts visit a property and prepare a pre-litigation report before a lawsuit is even filed, it is possible a company representative may notice someone on the property measuring areas or evaluating compliance generally.

Aren’t these issues sorted out in the contract with the landlord—do tenants need to worry?

Both landlords and tenants are responsible for complying with the ADA.[3] Sometimes, landlords or tenants contractually agree that one party is responsible for actually making the changes and has to indemnify the other party if there are any lawsuits brought. However, the plaintiff can still sue both parties. It is then up to the landlord or tenant to collect on the indemnification. However, there are some states, such as Nevada, where indemnification is preempted and prohibited under the ADA because permitting an owner to circumvent responsibility would lessen the owner’s incentive to ensure compliance with the ADA.[4]

If a company is sued, will this claim be covered by insurance?

It depends on the policy. There are some policies that will cover these types of lawsuits and others that will not. Some companies choose not to submit these claims to their carriers out of the concern that the carrier will take over the defense. A company might lose their choice of counsel or perhaps some of the control over the direction of the litigation and potential settlement. However, if there is any possibility of coverage and the company wants to have the insurance company cover the claim, then the company may choose to tender defense to the carrier.

What if a company is sued by an association working on behalf of individuals with disabilities—do these organizations have standing?

An “associational” claim may be brought by an organization when (1) its members would otherwise have standing to sue in their own right; (2) the interests it seeks to protect are germane to the organization’s purpose; and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.[5] Although, just because an organization can bring a claim on behalf of a disabled individual, does not mean that they have properly pled the claim.

Does Title III cover anything other than construction issues?

Yes. Title III of the ADA also governs how businesses should treat service animals and other accommodations that should be made for guests.

Is it worth even fighting the lawsuit or should a company just “fix” everything?

Some companies are served with a complaint and the first response is—that’s easy, we can fix that. Perhaps they did not know the company was out of compliance and they have the means to quickly and efficiently resolve the allegations in the complaint. There are certainly instances when plaintiffs have been able to resolve and moot a complaint.[6] This issue, unfortunately, is not as clear cut as one would hope in some jurisdictions. Since certain courts treat the issue of mootness differently than others, plaintiffs may dispute that mooting a claim results in the dismissal of the lawsuit.

Each company should evaluate the pros and cons of litigation. A company may have a perfectly valid defense to a claim and be able to demonstrate it is in compliance with the ADA. On the other hand, a company may find that it is prohibitively expensive to implement all the changes that the plaintiff is identifying in the lawsuit. Companies should consider developing a litigation strategy early on so they can maximize their resources, efficiently address these cases, and ensure compliance with the ADA.

_____________
Notes:

[1] Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1061-62 (9th Cir. 2007).

[2] Id.

[3] 28 C.F.R. §36.201(b).

[4] Rolf Jensen & Associates v. District Court, 282 P.3d 743, 748 (Nev. 2012).

[5] See, e.g., Concerned Parents to Save Dreher Park Ctr. v. City of W. Palm Beach, 884 F. Supp. 487, 488-89 (S.D. Fla. 1994).

[6] See, e.g., Oliver v. Ralphs Grocery Co., 654 F.3d 903, 905 (9th Cir. 2011); Brooke v. Elite Hosp., LLC, No. 4:15-CV-0425-HRH, 2016 WL 3213223, at *4 (D. Ariz. June 10, 2016).

About Ashley Kasarjian

Attorney at Snell and Wilmer in Phoenix, Arizona, and publisher of the blog, Employment and the Law.
This entry was posted in ADA, Arizona and tagged , , , , , , . Bookmark the permalink.

One Response to Serial Plaintiffs Are Filing Waves of Disability Cases

  1. Pingback: Advocates for Individuals with Disabilities Foundation and Peter Strojnik Have Filed Another Wave of Disability Lawsuits in Arizona | Employment and the Law: A legal blog from the perspective of an employment attorney

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