By John W. Egan
Seyfarth Synopsis: Businesses are defending record numbers of ADA Title III cases every year. A recent decision in New York underscores the challenges business face when ADA plaintiffs are more interested in protracted litigation than settlement.
The number of ADA Title III lawsuits filed annually has increased more than 300 percent in the last five years. Government officials and a few judges dealing with burgeoning caseloads have taken steps to reign in abuses. Judges have disciplined attorneys for filing indiscriminate claims without a sufficient basis, state attorneys general have stepped in to curb high volume filers of these cases, and members of Congress have urged DOJ to resolve regulatory uncertainty that has sent the number of website accessibility claims soaring to new heights.
There are hundreds, if not thousands, of requirements for physical accessibility with which businesses must comply. Unlike local building code enforcement, non-compliance with ADA design standards is not simply redressed by a fine. Violation of these standards can give rise to a lawsuit in which a prevailing plaintiff can recover reasonable attorneys’ fees under the ADA’s fee-shifting provisions and, in some jurisdictions, an award of damages under state and municipal disability access laws.
In addition to fending off an increasing barrage of ADA lawsuits, businesses face the prospect of expending even more resources when the other side resists settlement in favor of litigation. A New York federal judge recently issued a decision criticizing a plaintiffs-side ADA firm that reportedly had no interest in settling an ADA case, even where the businesses were willing to remediate (and did remediate) ADA violations identified in the Complaint.
In Range v. 535 Broadway Group, LLC, Plaintiff asserted ADA, state and city law claims against a clothing store that occupied two stories in a multi-story, mixed use Manhattan building. While the case was pending, Defendant remediated nearly all alleged barriers and attempted, unsuccessfully, to obtain a settlement demand from Plaintiff. The court ultimately dismissed the ADA claim, and heavily criticized Plaintiff’s firm in doing so in its opinion.
The court stated that the firm was “impeding the progress of the case” by refusing to provide a global settlement demand and expressing “little interest” in resolving claims over barriers that Defendant had already remediated. The court cited other reported decisions critical of the firm’s “litigation gamesmanship,” which was reportedly part of its “repertoire” in ADA cases.
After reviewing Defendant’s motion for dismissal based on the pleadings, Plaintiff’s firm requested to amend the Complaint to withdraw the federal claim and assert only state and city law claims for damages. The court “rejected . . . . that maneuver as a thinly veiled attempt . . . to forum shop and seek a do-over in state court.” Plaintiff then opposed dismissal of the very same ADA claim he previously agreed to withdraw, and advanced an interpretation of the applicable regulation relating to accessible route requirements for multi-story buildings that was, the court noted, inconsistent with his attorney’s position in another case in the same jurisdiction. The court went so far as to describe the argument as one Plaintiff’s attorneys “kn[ew] is a loser.”
According to the court, “[s]uch freewheeling advocacy is of no use to a judge, . . . flirts with violating Rule 11 . . . .[,]” and “waste’s everyone’s time.” The court dismissed the ADA claim, but exercised supplemental jurisdiction over Plaintiff’s New York City Human Rights Law claim, which the court held could not be dismissed on a motion for judgment on the pleadings.
Businesses are defending a record number of ADA lawsuits annually. As a remedial statute that awards attorneys’ fees to a prevailing plaintiff, businesses are often incentivized to reach a settlement before expending significant resources in litigation. The emergence of plaintiffs-side attorneys interested in pursuing protracted litigation, despite a business’s interest in an early resolution, represents an additional concern for businesses seeking to limit their exposure from predatory ADA lawsuits.
Edited by Minh N. Vu