In an article published recently in The Wall Street Journal (“Disability Lawsuits Against Small Businesses Soar,” October 15, 2014), staff writer Angus Loten reported that accessibility lawsuits brought under the Americans with Disabilities Act (ADA) against public accommodations increased by nearly 55 percent in the first six months of 2014 as compared to the number of filings in the same period in 2013. This increase follows a reported 9 percent increase in disability access lawsuits from 2012 to 2013. The article also reported that many of the lawsuits were brought in California, New York, and Florida.

Some commenters have attributed the increase in litigation to a 2013 case, Houston v. Marod Supermarkets, Inc., in which the Eleventh Circuit Court of Appeals ruled that “testers” (individuals or groups who visit public accommodations, not as patrons, but to assess a company’s disability access compliance and to identify barriers) may bring claims under the ADA.  But, this claim is questionable for a number of reasons. First, the increase in litigation has occurred outside of the Eleventh Circuit, whose precedent binds federal courts in Alabama, Georgia, and Florida. Other circuits have already adopted more liberal standing standards that were not substantially modified by the non-binding decision in Houston.

Second, while the Houston decision is not as helpful to owners and operators of public accommodations, it recognized that defeating standing is a fact-specific undertaking that is difficult to make on a motion to dismiss—as it was before the court in Houston. The decision also recognized that ADA plaintiffs still must demonstrate that they have a concrete and realistic plan of visiting the public accommodation in the future, at which time they would encounter the barriers alleged in the complaint. The Houston court noted that a plaintiff who lived far enough away from the location in question might have trouble establishing this element of standing.

A far more likely reason for the increase in ADA Title III litigation is twofold: the growth in the number of serial ADA plaintiffs who are bringing multiple claims and the increase in the size of the plaintiffs’ bar supporting and advancing such claims. As time has passed, more plaintiffs and their lawyers have been willing to bring an increasing number of cases. The use of class action procedures to capture larger numbers of locations in one lawsuit has also grown. Plaintiffs who have only visited one or two locations are seeking relief against a dozen or more locations at a time simply by alleging violations against a class of disabled guests. Essentially, ADA Title III plaintiffs and their lawyers are growing more ambitious and more aggressive.

As has been the case for many years, this increase in litigation only reinforces our recommendation that those who own or operate public accommodations should review their options before they are sued, ordered to undergo repairs and remediation under court supervision, and made to pay legal fees on both sides of the case. Waiting until your business is sued to fix any issues with your public accommodation remains an option. However, this course of action should be carefully considered in advance and alongside other options in close consultation with legal counsel before a decision is made on how to handle potential litigation.