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Fix Then Fight to Respond to Serial ADA suits
Posted in Employment Law

In 2016, the number of civil lawsuits filed under the Americans With Disabilities Act (ADA) continued to climb, up 28% from the previous year. The vast majority of the increase in claims came not from discrimination in employment, but in non-employment cases, which increased 36% from the year before.

While many ADA suits present valid claims, the popularity and ease of filing “serial ADA suits” continues to climb. In serial ADA suits, a single plaintiff brings separate individual suits against dozens, even hundreds of businesses. Often the violations complained of include inadequate parking or signage, but could also include any number of smaller violations within a business required by the ADA such as aisle width, counter height, and the height of mirrors or sinks in bathrooms.

One reason the suits have proliferated is that while there is no award for damages to the plaintiff, the ADA demands the recovery of attorney’s fees. The suits are profitable because while businesses may have been sued over only a minor ADA violation, they face the possibility of subsequent and rising attorney fees the longer the dispute goes on. Serial filers under the ADA usually visit many businesses for the sole purpose of finding a violation to base a suit on, no matter how minor.

While not widespread, some courts, including the Eleventh Circuit, have begun articulating a less expensive defense strategy against the most egregious serial suits alleging minor violations that are easily remedied by the company. This “fix then fight” strategy provides a way forward for businesses that are able to quickly comply with minor ADA violations and obviate the expense of demand-letter attorney’s fees.

The reasoning cited by the courts is that by repairing a minor problem before trial in permanent way, the claim is essentially moot. ADA claims are only for injunctive relief, i.e. fixing the ADA violations. In the best case scenario, a company should fix anything valid complained of in the complaint before filing the answer, but even after that, if the problem has been solved prior to trial, then there is no way the court can order the injunctive relief sought by the plaintiff. In other words, a company can moot the claim by complying with the ADA as soon as possible.

In Nat'l All. for Accessability, Inc. v. Walgreen Co., the district court articulated the principle. “The standard for judging whether voluntary conduct has mooted a case “is stringent: A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Nat'l All. for Accessability, Inc. v. Walgreen Co., 3:10-CV-780-J-32-TEM, 2011 WL 5975809, at *1–4 (M.D. Fla. Nov. 28, 2011).

Citing a number of similar district court decisions, the court found that the compliance efforts of Walgreens, a new ADA compliance policy, and new training processes, it was “absolutely clear” that the ADA violations identified by Plaintiffs cannot “reasonably be expected to recur.” Id. “Because Walgreens has invested substantial resources to make its store ADA-compliant, it would be unreasonable to think that Walgreens would remove the improvements or otherwise violate the ADA after the case is dismissed.” Id.

When faced with a drive-by ADA suit alleging what you feel to be minor violations or violations that can be permanently repaired in short order, a genuine attempt to comply with the law is often the best offense and gives companies the ability to push back against unreasonable demands for fees.

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