Any business that offers goods or services to the public, or a landlord that leases to such a business, is at risk of being named a defendant in a disability access lawsuit. Record numbers of these suits brought by a small group of disabled individuals and not-for-profit organizations, with no real intention of patronizing these establishments, alleging technical violations of Title III of the Americans with Disabilities Act are being filed against businesses.

California, which reportedly has 12 percent of the country’s disabled population but 40 percent of the nation’s ADA lawsuits, has been contending with these lawsuits for years.  This problem has now come to Westchester County.  As reported in the October 16, 2012, edition of the Westchester Journal, Westchester has seen a spike of these lawsuits. Businesses can discourage accessibility lawsuits by adopting defenses and strategies that eliminate, or significantly reduce, the risk of being targeted.  They also can facilitate quick and inexpensive resolutions to suits that are brought. Jackson Lewis has represented clients in hundreds of Title III lawsuits nationwide. We offer our insights into this growing problem for Westchester businesses and landlords.

Some plaintiffs have filed dozens, or even hundreds, of lawsuits alleging they were denied full use of a restaurant, hotel or retail establishment because it was not ADA-compliant. These “drive-by” lawsuits (they are filed by people with no real interest in patronizing the particular business) have spawned a cottage industry of plaintiff’s law firms that “partner” with a disabled individual to bring ADA claims in federal court.  In their suits, they ask the court to order the business to correct the problem immediately and pay the plaintiff’s lawyers their attorney’s fees. Many “serial filers” add disability claims under state laws, which provide for individual damages, increasing the possible monetary recovery.

ADA Accessibility Guidelines

Congress enacted the ADA in 1990.  Title III of the ADA sets standards for access to public accommodations and commercial facilities for people with disabilities.  It prohibits discrimination based on disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to) or operates a place of public accommodation.  This law applies to virtually all businesses that offer goods and services to the public. It even regulates things such as the size of public bathrooms, the height of service counters, and the availability of wheelchair ramps.

The Notice Problem

The ADA makes disability access cases lucrative for plaintiffs’ attorneys. Currently, the law does not even require a would-be plaintiff to give the targeted facility notice of the alleged violation before filing suit. (California has addressed this problem with a new law.  See our article, New California Law Targets Frivolous Disability Access Lawsuits.)  Although many violations could be corrected easily and inexpensively, a plaintiff can only recover attorney’s fees if there is a pending lawsuit, so disabled individuals rarely give notice. Such is the rush to the courthouse that some judges are beginning to see competing claims by various plaintiffs’ firms and groups over the same location. For the most part, businesses have no idea about a compliance issue until they are served with the lawsuit.

Defense Strategies

Cost-effective ways to fight “drive-by” plaintiffs, and their attorneys, include:

Put plaintiff’s attorney’s fees at risk.  A plaintiff’s attorney typically threatens continuing litigation to drive up the defendant’s costs and force a settlement that does not reflect a reasonable attorney’s fee.  However, a court may greatly reduce a plaintiff’s attorney’s fee if the defendant can show the plaintiff had prosecuted only a common, garden-variety accessibility lawsuit.  This can encourage plaintiff’s counsel to seek an earlier, more acceptable settlement.

Show plaintiff lacks standing to sue.  Proof that the plaintiff does not intend to return to and patronize the business because, for example, he or she lives in another county or town can result in the lawsuit being dismissed.  Similarly, if the technical accessibility violations relate to barriers that do not affect the plaintiff’s disability (e.g., a visually impaired plaintiff suing for the installation of an accessible ramp), the lawsuit is subject to dismissal.

Take compliance-related action.  Businesses that ensure their facilities are compliant are less likely to be targets of accessibility lawsuits. For example, if the entrance is not accessible because of stairs, then the business is an easy target for these lawsuits.  Develop a plan that permits an individual in a wheelchair to enter the facility and provide notice of this at the entrance.  An apparent effort at compliance may deter plaintiff’s counsel.

Avoiding Suit

Businesses and landlords subject to Title III should audit their property for compliance with Title III.  Attorneys and architects familiar with the law can assist with the discovery and correction of violations before they become a problem. Attention to compliance issues is particularly important any time a business undertakes structural improvements or additions, or ownership changes, since the construction or transfer of control may trigger new obligations for accessibility that did not exist previously.

For additional information about Title III or state disability access laws and assistance in conducting an audit, please contact the Jackson Lewis attorney with whom you regularly work.