Seyfarth Synopsis: A disability advocacy group behind approximately 1,700 Arizona access lawsuits breaks new ground by filing suit against the Arizona Attorney General, in an unusual counter-attack to the AG’s motion to dismiss those cases for lack of standing.

As we previously reported here, the Arizona Attorney General (“AG”) responded to a surge of access suits filed in that state’s courts by moving to consolidate and to intervene in all actions initiated by self-styled disability rights advocacy groups, including Advocates for Individuals With Disabilities Foundation (“AIDF”) and David Ritzenthaler. The state court granted the AG’s motions on September 23. Soon thereafter the AG filed a Motion to Dismiss and For Judgment on the Pleadings.

In a further twist on this story, AIDF and Ritzenthaler have now sued AG Mark Brnovich in his official capacity for mandamus relief against the AG and for attorneys’ fees and costs. Specifically, the Plaintiffs seek an order that the AG must initiate an investigation into the violations that have been alleged in approximately 9,000 complaints allegedly filed with the AG’s office. Plaintiffs argue that the AG is required to investigate such complaints under state law, and has failed to do so. Plaintiff further alleges that non-compliance with the state’s accessibility statute is widespread, apparently citing an AIDF press release.

Whether or not this tactic is an effective litigation strategy remains to be seen. The AG’s pending Motion to Dismiss challenges both the individual’s (Ritzenthaler’s) and the organizations’ standing to bring their claims under Arizona law. According to the AG, Arizona has a “rigorous” standing requirement, which the plaintiffs in the consolidated matters fail to meet for several reasons. First, they fail to allege that they patronized or attempted to patronize the defendants’ businesses. Second, the AG argues that the plaintiffs fail to allege an actual barrier to their access. The AG noted that the state accessibility law violations identified in the consolidated complaints concern accessible parking signage, but that plaintiffs “assume that every instance of non-compliance with ADA or AZDA regulation, no matter how minor, represents a ‘barrier.’” The AG then states that “not all instances of ADA or AZDA non-compliance are barriers, and not all barriers deny access to all persons with disabilities.” Third, the AG asserts that plaintiffs fail to sufficiently allege standing because they did not allege denial of access based upon an identified disability. In other words, the plaintiffs do not link an identified instance of non-compliance to their particular disability. Fourth, the AG argues that Arizona does not recognize a “deterrence” theory of standing, which conceivably might overcome other failures in the complaint. Finally, the AG argued that the consolidated plaintiffs fail to allege the additional standing requirements for injunctive relief, i.e., that the plaintiffs provided prior notice or an opportunity to remediate alleged violations and allege an intent to patronize the businesses in the future.

The AG argues that the various Plaintiffs in these consolidated actions should not be given leave to amend such deficiencies in the pleadings, due to a “documented history of bad faith, abusive tactics, and dilatory motives.” To support this assertion, the AG notes that plaintiffs have filed over 1,700 deficient complaints in 2016, and have “extracted” about $1.2 million from those lawsuits. The AG also contends that the plaintiffs’ proposed “Universal Amended Complaint” still fails to adequately plead standing, further demonstrating undue delay. It also, perhaps, demonstrates futility of amendment under these circumstances.

These, first-of-their-kind, cross actions between an enforcement agency and a serial plaintiff may continue to provide additional data and insight into assertions of lawsuit abuse in the disability access context. We will continue to monitor these actions and keep posting on developments.