Carol Lumpkin and Stephanie Moot, K&L Gates.

Title III of the Americans with Disabilities Act (ADA) is designed to ensure that individuals with disabilities have equal access to the goods and services offered by a place of public accommodation. The law, however, has been susceptible to litigation abuse since its passage in 1990. Businesses, particularly those in Florida, California and New York, have long been the target of “drive-by” litigation (coined for lawsuits where the plaintiff does not actually patronize the business, but sues based on technical violations noted while driving by it). Drive-by lawsuits are often filed by serial plaintiffs and motivated by attorney fees, which are recoverable under the ADA, instead of the underlying merits.

Legislative efforts to reduce the number of “drive-by” suits have garnered support over the years, but have not been successful to date on the federal level. Earlier this year, the U.S. House of Representatives passed H.R. 620, known as the ADA Education and Reform Act. H.R. 620 would require that a business be given pre-suit notice of an alleged ADA violation and an opportunity to cure such violation before it could be held liable. The proposal, however, has met with some resistance. Advocates for the disabled argue that it would disincentivize businesses to take proactive steps to ensure access to their facilities. At this point, it appears the proposal may stall in the Senate.

State Law Reform

Reform, however, may be achieved through other means. Some states have adopted legislation in an effort to curb litigation abuse. For example, Florida’s new law, codified at Fla. Stat. Section 553.5141, provides that a covered business may hire a “qualified expert” to inspect its facility for potential ADA violations, recommend a remediation plan if barriers are identified, and certify when the remediation is completed. The business owner can then file with the state’s public Title III ADA Registry a certification of conformity indicating that the facility complies with the ADA, or a remediation plan indicating that the facility does not conform with the ADA but that barriers will be removed within a reasonable time. If the business is sued for ADA violations, then the court must consider any prior-filed certification or remediation plan in determining whether the complaint was filed in good faith and whether the plaintiff is entitled to attorney fees and costs.

Time will tell whether this law, which became effective on July 1, 2017, will impact the number of “drive-by” lawsuits filed in Florida.

Quick Remediation

In a court-driven effort to address “drive-by” litigation, a recent federal court of appeals opinion suggests that prompt remediation by a defendant may lead to dismissal of an ADA lawsuit. In Davis v. Anthony, Case No. 16-4051 (8th Cir. March 29, 2018), the U.S. Court of Appeals for the Eighth Circuit affirmed the dismissal of an ADA complaint following the restaurant’s quick remedial action. The complaint alleged that the restaurant lacked the requisite number of accessible parking spaces, as well as the required access aisles and signage for them. The restaurant promptly fixed those items and moved to dismiss the complaint based on mootness and lack of standing. It argued that, because the issues raised in the complaint no longer existed, there was no case or controversy for the court to decide. In granting the motion, the district court dismissed the case and denied the plaintiff’s request for attorney fees.

On appeal, the plaintiff argued, among other things, that the district court prematurely dismissed the action because it did not allow her to conduct discovery to determine whether ADA violations existed inside the restaurant. The Eighth Circuit, however, determined that the plaintiff was not entitled to such discovery because she lacked standing. It explained that she “cannot use the violation encountered in the parking space to expand her standing to sue for unencountered violations inside the steakhouse that never injured her.”

Calling the Plaintiffs Attorneys to Task

Separately, the U.S. District Court for the Middle District of Florida has moved to address the cottage industry of “drive by” litigation at its source—the plaintiffs attorneys. District Court Judge Roy B. Dalton, Jr. recently initiated proceedings, over which District Court Judge Gregory A. Presnell presides, against several ADA plaintiffs attorneys for repeatedly disregarding court orders and procedural rules, see In re ADA Cases, 6:18-mc-00014-GAP-DCI (M.D. Fla. Feb. 20, 2018). On May 1, Magistrate Judge Daniel C. Irick, to whom the matter was referred, entered an order to show cause which, among other things, noted counsel’s repeated filing of “vague, boiler-plate complaints—often improperly joining multiple defendants—that fail to comply with the Federal Rules of Civil Procedure, despite numerous negative orders directed to those deficient pleadings.” It further directed counsel to show cause why they repeatedly failed to comply with the court’s orders and rules; what sanctions can or should be imposed as a result of such failures; why they should not be banned from filing additional ADA cases before the court; and, alternatively, what steps can and will be taken to immediately ensure future compliance with the court’s orders and rules. Counsel recently filed their responses. A close eye should be kept on the court’s determination.

Takeaways

There are things that businesses can do to enhance access to their facilities and potentially deter ADA litigation:

  • Consult with counsel on your ADA obligations and develop a compliance plan. It is important to know the design standard that applies to your facility and whether any elements are safe harbored.
  • Consult with an ADA expert regarding potential barriers to access and an appropriate remediation plan.
  • Consider whether your state (e.g., Florida, California, Arizona, Minnesota) has enacted ADA reform legislation and whether it might benefit your business and, if so, how.
  • Should you be sued under the ADA, consider whether prompt remediation may avoid your liability for plaintiff’s attorneys’ fees and costs.

Stephanie N. Moot and Carol C. Lumpkin are partners at K&L Gates in Miami.