By Jon Meer & Myra Villamor

It is a common practice among a growing group of serial plaintiffs to slap businesses with frivolous “accessibility discrimination” lawsuits under the Americans with Disabilities Act (ADA) and similar state laws such as the California Disabled Persons and Unruh Acts.  In these cases, a person with a disability claims that he was “discriminated against on the basis of disability in the full and equal enjoyment of goods, services, facilities, privileges, [or] advantages” in a business that operates as “a place of public accommodation.”  Virtually every business and facility that allows public visitors is a “public accommodation.”

These lawsuits are based on alleged violations of a long list of ADA and California Title 24 regulations that covers everything from the width of store aisles to the shape of a door knob.  Rather than seeking merely to resolve purported barriers to accessibility, these plaintiffs seek to pursue civil claims that will allow an award of hefty attorney’s fees.  Indeed, a number of courts have acknowledged that many of these lawsuits are nothing more than shakedowns, where unscrupulous law firms send disabled individuals, some with hundreds of similar lawsuits on file, to as many businesses as possible in order to generate lawsuits alleging ADA violations.

Most businesses succumb to the temptation to settle these cases because plaintiffs typically make relatively low settlement demands.  These settlements, however, are often no more than a quick fix that opens the door to future litigation, since no settlement agreement can restrict a plaintiff’s lawyer from filing additional lawsuits on behalf of other plaintiffs.  Indeed, some plaintiff’s lawyers may even conclude that a company is an easy mark after it pays a quick settlement.  Thus, many companies get hit with ADA lawsuits filed by the same plaintiff’s lawyers year after year.  A company may even find itself sued by a plaintiff with whom it has just settled, alleging violations at a different location, before the ink is dry on the settlement check.

A business should therefore assess the validity of an ADA lawsuit before deciding on a quick and seemingly inexpensive settlement.  If a business has not violated the ADA, or has determined that it can remedy any technical ADA violations (e.g., a dressing room mirror that is mounted slightly higher than allowed by the regulations) and therefore moot the ADA claims, it should consider the value of fighting the lawsuit.

In the recent case of Tony Martinez v. Columbia Sportswear USA Corp., et al. in the U.S. District Court for Eastern District of California, an entrepreneurial plaintiff with over 160 other similar lawsuits, through his attorney Lynn Hubbard, with even more similar lawsuits under his belt, alleged ADA violations based on “barriers to access” against 20 retail stores as well as the owner of an outlet mall in California.  Eighteen businesses decided to settle with the plaintiff—and many of these businesses have since been sued yet again by the same plaintiff’s attorney.  Three retailers, represented by Seyfarth Shaw, decided to fight the frivolous lawsuit, arguing that the alleged barriers either never existed or had been remedied, thereby mooting the plaintiff’s ADA claims.  Just this month, Judge Garland Burrell granted all three retailers summary judgment, holding that the alleged barriers never or no longer existed.  All three retailers are in the process of seeking attorney’s fees and costs from the plaintiff.

A business that successfully defeats a frivolous ADA lawsuit may recover its reasonable attorney’s fees, including litigation expenses and costs.  An award of attorney’s fees is a significant deterrent to future lawsuits.  Courts have granted large attorney’s fee awards to businesses even when the business could have settled the case for an amount much less than the fees incurred.  And while collecting fees may be difficult—few plaintiffs are likely to have assets to pay a six-figure award—a prevailing business may place liens on settlements and judgments from the plaintiffs’ numerous other lawsuits, thereby effectively shutting down those plaintiffs as serial ADA litigants.

While fighting ADA suits and collecting fees and costs may be a lengthy process, the advantages are considerable.  By refusing to settle frivolous cases, businesses send a strong message that will ensure that the same plaintiff, plaintiff’s counsel or other law firms that engage in similar shakedown tactics will think twice about targeting those businesses again.