Arizona is just one of many states in which business owners – many of them, small business owners – are being inundated with lawsuits filed by disabled individuals or disability advocacy organizations alleging inaccessible public accommodations. These serial litigants allege that the defendants have failed to comply with the Americans with Disabilities Act (“ADA”) or its various state analogs – in Arizona, the Arizonans with Disabilities Act (“AzDA”) – by failing to remove barriers to access, rendering the places of public accommodation they own or operate inaccessible to the disabled community.
Under the ADA, a party may seek injunctive relief to force non-compliant places of public accommodation to remediate barriers to access, and recover attorneys’ fees and costs if successful. The AzDA largely mirrors the federal statute, but, unlike the ADA, plaintiffs in AzDA actions can recover compensatory damages up to $5,000, though the state statutory scheme encourages “alternative means of dispute resolution,” such as settlement, conciliation, and mediation.
Although the ADA has been litigated since it was enacted in 1991, in the past year, an entity called the Advocates for Individuals with Disabilities LLC (“AID”) has filed more than 2,000 nearly identical lawsuits in Arizona – sometimes dozens of lawsuits filed per day – alleging technical violations of the ADA design accessibility guidelines, such as insufficient parking spaces for disabled patrons. As reported by the local news, AID makes limited pre-filing inquiries of business owners before suing for injunctive and monetary relief, plus attorneys’ fees. The lawsuits generally do not allege that any specific disabled individual encountered any of the alleged barriers to access, just that the mere alleged existence of a barrier to access deters the disabled from visiting the place of public accommodation.
AID’s attorney, Peter Strojnik, admitted in the news media’s investigation that AID tenders a standard opening settlement demand of $7,500 in exchange for settlement and dismissal of his client’s lawsuit. Weighing the costs of defense, many targeted business elect to settle rather than incur attorneys’ fees defending the action, which are rarely recoverable. According to AID, its average monetary settlement in the hundreds of cases it has resolved so far has been $3,900 per case, not including the costs of remediation, which must also be borne by the defendant. Although AID defends its unorthodox litigation approach as an attempt to achieve accessibility for the disabled, critics disagree, alleging the scheme exploits the laudable goals of the ADA and AzDA.
Siding with the scheme’s critics, this week, the Arizona Attorney General (“AzAG”) filed a motion to intervene in one of the thousands of AID-filed lawsuits, citing the State’s interest in seeing that AzDA’s alternative dispute resolution procedures are implemented and to prevent, according to the AzAG’s motion, “a concerted effort to improperly use the judicial system for [AID’s] own enrichment.” The AzAG promises it will seek to consolidate, and then move to dismiss, the hundreds of nearly identical cases AID has filed.
Although AID is one of the most prolific ADA serial litigants, this is not a phenomenon occurring only in Arizona. Its lawyer, Mr. Strojnik, has not only filed thousands of cases in Arizona’s state court, but hundreds of cases in federal court as well. Other so-called disability advocacy organizations like AID, such as the National Alliance for Accessibility, Inc., have filed hundreds of such cases against businesses nationwide. Businesses served with lawsuits alleging ADA or state law accessibility violations are encouraged to seek counsel early to evaluate whether to take a more aggressive approach than acquiescing to the litigants’ settlement demands. More aggressive litigation tactics may help to slow the rising tide of serial disability litigation. And while the AzAG’s intervention in this spate of Arizona cases is encouraging, the most effective long-term solution to the rise of serial ADA litigants would be a statutory amendment to require a pre-filing notice-and-cure period and the adoption of alternative dispute resolution measures like those adopted by the Arizona legislature that the AzAG is attempting to enforce.