Seyfarth Synopsis: In an apparent effort to stop one plaintiff’s lawsuit spree, the Nevada Attorney General moves to intervene in a federal ADA Title III lawsuit arguing that the plaintiff failed to provide notice to the state agency responsible for enforcing Nevada’s antidiscrimination law before filing suit.
On Wednesday, August 9, the Nevada Attorney General filed a motion to intervene in an ADA Title III lawsuit filed by serial plaintiff Kevin Zimmerman who (according the motion) had sued more than 275 Nevada businesses in federal courts in the past seven months.
The motion to intervene argues that Title III of the ADA requires private plaintiffs to – before filing in federal court – provide 30 days’ notice to the state agency responsible for enforcing state laws that prohibit the same type of discriminatory conduct at issue in the federal suit. The Nevada Attorney General explained that the notice gives the state enforcement agencies an opportunity to conduct their own investigation and take action. The brief notes that there is an exception to this notice requirement where a plaintiff has actual notice that the defendant does not intend to comply with the law, but Mr. Zimmerman did not plead that he had actual notice of any such intent. This is an interesting argument that could be a useful defense strategy in some ADA Title III cases, though it has been rejected as the basis for a dispositive ruling by the Ninth Circuit in Botosan v. Paul McNally Realty.
The Nevada Attorney General’s motion to intervene is not the first time that a state attorney general has stepped in to thwart the actions of serial plaintiffs filing accessibility lawsuits. Last year, the Arizona Attorney General intervened in and secured the dismissal of 1700 cases filed against Arizona businesses under the Arizonians with Disabilities Act (not the ADA), as we reported here.
Stay tuned for more developments in Nevada – a state that only had 6 ADA Title III lawsuits in all of 2016.