We love fighting – and winning - ADA Title III cases, especially those brought by serial plaintiffs. But litigating ADA Title III claims, even in serial plaintiff cases, has its risks. While there is often a compelling business case for fighting, a recent case out of the Southern District of New York illustrates that there may at times also be a business case for settling.

In that case, Kreisler v. Second Avenue Diner Corp., the district court ordered the defendant who lost (in part) at trial to pay the plaintiff nearly $60,000 in fees and costs. The plaintiff identified thirteen alleged barriers to access in the defendant’s restaurant, but established only four violations at trial, including that it was “readily achievable” (i.e., easily accomplishable and able to be carried out without much difficulty or expense) for the restaurant to remediate its restrooms and to construct a ramp to the building’s entrance. Because the plaintiff succeeded in establishing some access violations, he was a prevailing party entitled to damages (under New York state law), and to attorneys’ fees and costs. The court did reduce plaintiff’s fee recovery by 30% because he had not been successful on all his claims, but the defendant ended up saddled with a $60,000 fee and cost tab (not to mention defense fees incurred).

The Kreisler case serves as a reminder that a defendant in an ADA Title III case should consider a number of factors – including the facility and the quality of the plaintiff and his or her pleadings – before deciding whether to litigate or seek early resolution. An early assessment of those factors, with the assistance of experienced Title III counsel, is essential to developing your strategy for the case. A defendant that blindly jumps into litigation without doing this assessment may discover that ADA or state law violations do exist and that remediation and settlement would have been far more cost effective and less risky than litigation.

Investigate, evaluate. Then decide whether to conciliate and remediate or to put the gloves on and litigate.