Litigation Under the Americans With Disabilities Act and Its Application to Counsel
I. Introduction
Congress enacted the Americans with Disabilities Act (“ADA”) in 1990 to remedy discrimination against individuals with disabilities. 42 U.S.C. § 12181 (2000). The ADA requires the removal of structural barriers in existing public facilities “where such removal is readily achievable.” Id. § 12182(b)(2)(A)(iv). If, however, removal of structural barriers is not readily achievable, the facility must provide access “through alternative methods.” Id. § 12182(b)(2)(A)(v).
The ADA creates a right of action by the Attorney General. Id. § 12188(b). Specifically, the Attorney General may seek monetary damages on behalf of an “aggrieved party.” Id. § 12188(b)(2)(B). Additionally, private parties may sue under the ADA. Id. § 12188(a). The only remedies for private plaintiffs however, are injunctive relief and the recovery of attorneys’ fees and costs. Id. § 12188(a)(1).
In recent years, private parties have all but obliterated the barriers to recovering money damages under the ADA. Certain law firms have filed more than hundreds of lawsuits in a single federal district court. Certain private citizens have become certifiable litigants. The result of these unending lawsuits has been certain: the lawyers, not the disabled, have been the primary beneficiaries.
The scheme has been finely tuned and developed over sixteen years. A law firm will send a disabled individual to as many businesses as possible in order to have him or her aggressively seek out multiple, alleged violations of the ADA. Rather than inform the business of these alleged violations and seek to resolve the matters through conciliation and compromise, the firm’s lawyers sprint to the courthouse. Lawsuits are subsequently filed, in which the plaintiffs seek wide-ranging injunctive relief. “Faced with costly litigation and a potentially drastic judgment against them, most business quickly settle.” Doran v. Del Taco, Inc., 373 F. Supp. 2d 1028, 1034 (C.D. Cal. 2005) (citation omitted). Attorneys’ fees are collected and the lawsuit ends, but the game goes on.
This particular form of “shotgun litigation” has been perfected to an art form over the years. However, it has had adverse consequences. In what may be a back-handed ode to the New Testament, hundreds of lawsuits were filed by an allegedly paralyzed individual who walked into his deposition. Quite a few individuals have acted as virtual spies for law firms, visiting as many hotels or restaurants as possible in order to file as many lawsuits as possible.
Lawyers have not let this opportunity pass. Indeed, some law firms have sent letters to property owners that advise them to swiftly settle ADA lawsuits. The letters stated that the defendant had no “bona fide” defense; that the defendant may have insurance coverage; and that the defendant should settle rather than face a protracted lawsuit. Molski v. Mandarin Touch Rest., 359 F. Supp. 2d 924, 928 (C.D. Cal. 2005). As one judge has already held, these letters were “aimed at one goal: coercing a quick settlement.” Id. A statute that Congress enacted to protect disabled individuals has been transformed into a money-making scheme.
In its current form, the ADA has allowed some lawyers to initiate unending lawsuits that can best be characterized as extortion. These lawsuits have undermined the purpose of the ADA and have disserved the interests of disabled individuals. There are, however, two legitimate responses to these types of lawsuits. First, counsel for the defense can credibly argue that the plaintiffs lack standing because they do not intend to return to the property that allegedly violates the ADA. Second, defense counsel can argue that attorneys’ fees should not be awarded because the plaintiffs did not provide the defense with pre-suit notice. I address each response in turn.
II. Seeking to Dismiss Lawsuits Based on Lack of Standing.
Many ADA plaintiffs follow a predictable pattern. They stay at a hotel in a city they have never visited on a particular night. They document all alleged ADA violations and subsequently have the property inspected. Then, they leave the hotel, never to return again. It is therefore questionable that these plaintiffs would likely suffer future harm.
Article III of the United States Constitution requires that a plaintiff must have standing to file a lawsuit. To satisfy the standing requirement, a plaintiff must show
(1) [he] has suffered an ‘injury in fact’ that is
(a) concrete and particularized and
(b) actual or imminent, not conjectural or hypothetical;
(2) the injury is fairly traceable to the challenged action of the defendant; and
(3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180-81 (2000). Courts determine whether standing exists or is absent “as of the date suit is filed.” Moyer v. Walt Disney World Co., 146 F. Supp. 2d 1249, 1253 (M.D. Fla. 2000). Attempts to manufacture standing after a lawsuit is filed are ineffective. E.g., Resnick v. Magical Cruise Co., Ltd., 148 F. Supp. 2d 1298, 1301 (M.D. Fla. 2001).
Plaintiffs in ADA lawsuits seek injunctive relief that will regulate future conduct. Consequently, a plaintiff has standing to seek injunctive relief only if the party alleges “a real and immediate—as opposed to a merely conjectural or hypothetical—threat of future injury.” Shotz v. Cates, 256 F.3d 1077, 1081 (11th Cir. 2001) (quotation omitted). “Asserting a past injury is not enough.” Brother, 331 F. Supp. 2d at 1373. Additionally, past exposure to allegedly illegal or improper conduct “does not in itself show a present case or controversy regarding injunctive relief . . . .” City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (citation omitted).
The lynchpin of most lawsuits under the ADA is that the plaintiff suffered barriers to access at a facility when he or she visited that facility in the past. Consequently, many ADA lawsuits have been filed by individuals whose only alleged injury is one they previously suffered. It is unclear, if not doubtful, that the standing requirement is satisfied.
Brother v. Tigar Partner, LLC, 331 F. Supp. 2d 1368 (M.D. Fla. 2004) is an excellent example of why many ADA plaintiffs lack standing. There, the plaintiff visited a Best Western in Orlando, Florida that was approximately two hundred and eighty miles from his home. Id. at 1373. The plaintiff could not remember when, if ever, he had previously stayed at the Best Western. Id. The plaintiff did not visit the Best Western after the lawsuit was filed. Id. Further, the plaintiff admitted during his deposition that he traveled to the Orlando area “only about twice a year.” Id. Viewing the facts in their entirety, the Court held that the plaintiff had failed to prove “a credible threat of future injury.” Id.
The Court stated that the plaintiff had no current plans to visit the Best Western. Id. at 1374. Further, Mr. Brother had an extensive litigation history. Id. At the time he sued the defendant, he had filed more than fifty lawsuits against other hotels in the Orlando area. Id. Given Mr. Brother’s substantial involvement in dozens of lawsuits and his paltry allegation that he intended to return to Orlando, the Court found the threat of future harm to be non-existent. Id. at 1374-75. Consequently, the Court granted summary judgment for the defendant based on lack of standing. Id. at 1375. Other courts have done the same. See id. (citing district court opinions); see also Rosenkranz v. Markopoulos, 254 F. Supp. 2d 1250, 1253 (M.D. Fla. 2003).
The Court’s opinion in Brother illustrates a problem that is fairly common for ADA plaintiffs who have chosen to become serial litigants. Plaintiffs who choose to visit facilities that are far from their homes only weaken their arguments in favor of standing. Plaintiffs who have never visited a facility before do not exactly have an ironclad argument that standing exists. If the plaintiff has neither the desire nor the expectation of visiting the facility again, how can the plaintiff face a legitimate threat of future injury?
Defendants who face traveling plaintiffs can prove their case quite quickly. Shortly after the lawsuit is filed and after the parties have conferred as required by Federal Rule of Civil Procedure 26(f), the defendant should take the plaintiff’s deposition and nail down his story. Assuming that this deposition does not reveal a tangible connection between the plaintiff and the subject facility, the defendant can either seek summary judgment or retain this evidence for trial.
The plaintiff’s deposition commits the plaintiff to his story and prevents the plaintiff from even attempting to manufacture standing after the lawsuit has been filed. Further, this deposition can easily flesh out the plaintiff’s history concerning the facility and, if applicable, the plaintiff’s propensity to file lawsuits. If defendants follow the road map set forth in Brother, they can possibly set up a thorough motion for summary judgment based on lack of standing. 331 F. Supp. 2d at 1374-75.
II. Opposing Attorneys’ Fees Based on a Lack of Pre-Suit Notice.
One may ask why those who represent disabled individuals are in a mad rush to file lawsuits when only injunctive relief is available. Cf. Rodriguez v. Investco, L.L.C., 305 F. Supp. 2d 1278, 1281 (M.D. Fla. 2004). The vast majority of ADA cases “are settled before trial with the property owner agreeing to remediate within a reasonable period of time.” Id. at 1281 n.12. It would therefore seem that pre-suit negotiations would best serve the interests of the disabled. Id. at 1281-82. After all, a quickly-obtained settlement is preferable to the uncertainties of protracted litigation. See id. Voluntary compliance and settlements, however, “do not vest plaintiffs’ counsel with an entitlement to attorney’s fees.” Id. at 1282 (citation omitted). In what can only be characterized as a perverse situation, the “current ADA lawsuit binge” is sustained by the economics of attorneys’ fees. Id.
The means for enforcing the ADA (attorneys’ fees) is quite alluring for many lawyers. Brother v. Tigar Partner, LLC, 331 F. Supp. 2d 1368, 1375 (M.D. Fla. 2004). And no one can credibly claim that ADA lawyers have let this opportunity pass. See id. In the Middle District of Florida, for example, the same plaintiffs “file hundreds of lawsuits against establishments they purportedly visit regularly.” Id. Private citizens act as “self-described sp[ies] for all disabled people . . . .” Access 4 All v. Oak Spring, Inc., Case No. 5:04-cv-75-Oc-GRJ, 2005 U.S. Dist. LEXIS 20218, at *6 (M.D. Fla. May 20, 2005). Those who suffer from disabilities become pawns for those who seek to recover fees. Rodriguez, 305 F. Supp. 2d at 1285. It therefore bends reason to suggest that this “type of shotgun litigation” upholds the spirit and the letter of the ADA. Brother, 331 F. Supp. 2d at 1375. More broadly, however, this type of litigation “creates a backlash against disabled persons who rely on the ADA as a means of achieving equal access.” Molski v. Mandarin Touch Rest., 359 F. Supp. 2d 924, 937 (C.D. Cal. 2005).
It is worth asking “whether attorney’s fees should be awarded where no effort is made pre-suit to obtain voluntarily compliance.” Rodriguez, 305 F. Supp. 2d at 1282 n.14. If all that results from a lawsuit is that which could have been achieved by agreement, “what social or economic value has been added by the lawyer’s decision to file a suit without warning?” Id. In this situation, litigation “accomplishe[s] nothing but expense and waste of precious judicial resources.” Id.
Attempting to repair a legislative void that has been blatantly and woefully exploited by lawyers, district courts have stepped into the breach and have begun expressing hostility to awarding attorneys’ fees. Four district court opinions in particular, have begun to set this trend. The first opinion was issued in February 2004; the last one was issued in June 2005. Put together, these four opinions provide a powerful rebuttal to those who seek attorneys’ fees after filing shotgun lawsuits under the ADA.
1. Rodriguez v. Investco, L.L.C., 305 F. Supp. 2d 1278 (M.D. Fla. 2004).
The philosophical case against awarding attorneys’ fees can be found in Rodriguez. 305 F. Supp. 2d at 1278-85. There, the plaintiff, a quadriplegic, had filed nearly two hundred lawsuits against various establishments in Florida. Id. at 1279. Investco, LLC acquired a hotel and converted it into a time-share community. Id. After staying at the facility in May 2002, Plaintiff contacted his attorney, “who inspected the property on August 3, 2002.” Id. at 1280. Six days later, Plaintiff sued Investco, LLC, contending that the facility was not ADA-compliant. Id.
Since the fall of 2002, Investco, LLC had been continuously renovating the hotel. Id. Indeed, the renovation project provided for ten ADA-compliant units. Id. According to Investco, LLC, the “on-going and planned renovations would cure any ADA-related problems.” Id.
Although the Plaintiff did visit the hotel, Investco, LLC did not own the hotel at the time of Plaintiff’s visit. Id. at 1284. Further, Plaintiff did not indicate an overwhelming desire to return to the hotel. Id. at 1285. Nor did Plaintiff claim that he intended to return to the hotel. Id. Indeed, the Court asserted that Plaintiff conveyed “the distinct impression that he is merely a professional pawn in an ongoing scheme to bilk attorney’s fees from the Defendant.” Id.
The Court began its analysis by noting that Investco, LLC purchased “an existing non-compliant facility.” Id. at 1283. However, Investco, LLC “had no involvement in the original design or construction of the Facility.” Id. The Court stated that those who purchase an existing non-compliant facility only have the duty to remove architectural barriers if doing so is “readily achievable.” Id. Hewing to the plain meaning of the ADA, the Court held that the only way Plaintiff could recover from Investco, LLC would be if no effort to renovate the hotel had occurred. See id.