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.
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.
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.
Contact us to discuss how our experienced drive-by ADA defense team can properly represent, protect and defend you, your business, and your assets, from ADA lawsuits.