Title III of the Americans with Disabilities Act (“ADA”) only provides for injunctive relief and attorneys’ fees; a private plaintiff cannot recover damages. Therefore, in certain circumstances, a claim under the ADA can become moot and a complaint dismissed if a public accommodation remedies the access barrier during the pendency of the litigation.
The doctrine of mootness is grounded in the constitutional requirement that federal courts may only decide ongoing cases or controversies. A federal court lacks jurisdiction to decide a case if the case is moot. A case is moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.[i] An intervening circumstance may deprive a plaintiff of a personal stake in the outcome of a lawsuit; for instance, when a defendant voluntarily stops the challenged conduct; a voluntary cessation.
Federal courts have held that a voluntary removal of an alleged barrier to access may render an ADA Title III claim moot if the defendant can demonstrate that (1) there is no reasonable expectation that the alleged violation will recur and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.[ii] In light of this standard, the mootness doctrine is particularly applicable to structural modifications which are unlikely to be altered in the future. Courts have noted that in such cases, after expending significant sums to achieve compliance, the suggestion that a property owner might revert to non-compliance is illogical because doing so would actually cost more than maintaining compliance.[iii]
Several recent, unpublished cases have addressed the issue of mootness and dismissed litigation when access barriers alleged in a complaint were permanently remediated while the litigation was pending. In Kelly v. Smith’s Food & Drug Centers, Inc.,[iv] a disabled customer filed ADA Title III claims asserting that the soap dispensers in the store’s restrooms were too high to reach and, the signs in the parking lot identifying accessible parking were not ADA compliant. During the litigation, defendant produced evidence that it had permanently remediated the items. Plaintiff, without amending the complaint, then asserted that there were 8-12 additional ADA violations on the same property. In affirming the District Court’s dismissal of the complaint without leave to amend, the Circuit Court held “In general, only disclosures of barriers in a properly pleaded complaint can provide the fair notice required by Rule 8; a disclosure made during discovery, including in an expert report, would rarely be an adequate substitute.” Id. Because the barriers, as plead in the complaint, were remediated prior to a judgment, the case was moot. Moreover, the plaintiff was not entitled to an award of attorneys’ fees and costs; a defendant’s voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, did not render the plaintiff a prevailing party entitled to attorneys’ fees and costs.
Similarly, the Court of Appeals for the Eleventh Circuit in Kennedy v. Omegagas & Oil, LLC,[v] entered judgment for the property owner when he removed barriers during litigation. Concluding the defendant has effectively remediated each of the many ADA violations noted in the plaintiff’s expert report, with the exception of one violation that was not readily achievable, the Circuit Court affirmed the District Court’s dismissal under the mootness doctrine.[vi] In addition, the court discussed “readily achievable,” holding that an estimated cost of $80,000 to move a bathroom wall three (3) inches to achieve ADA compliance in a building constructed before the enactment of the ADA (in concert with the lack of proof of the defendant’s ability to fund this project) rendered the remediation not readily achievable. Id. at 894.
Voluntary cessation is a viable defense to certain ADA claims, however, a periodic review of a public accommodation’s physical and digital properties is recommended to avoid costly litigation.
