Sued for ADA Non-Compliance? Now What?
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It happens a lot. Getting sued for Americans with Disabilities Act (ADA) non-compliance of Title III facilities is rampant in the United States. That’s not much consolation, and it is certainly the last thing you needed right now. Most of the lawsuits being filed are written by lawyers who work with serial Plaintiffs, otherwise known as high-frequency Plaintiffs. These are usually individuals who qualify as disabled as determined by the ADA. Regardless, what is done is done. What’s important now is how you handle it. How are you going to deal with the lawsuit? This article will provide information to help you move forward to resolve the lawsuit and hopefully prevent it from happening again.
It is important to note that most of the drive-by lawsuits filed by high-frequency Plaintiffs only address the easy-to-find ADA discrepancies. These lawsuits are filed in places that are public accommodations that anyone can visit because it is open to the public. In other words the Plaintiff does not need permission to be there. While at the public accommodation the Plaintiff can take notes and/or photographs of discrepancies to be included in the Complaint. In most cases the Defendant does not even know this is happening. Some of the most common complaints are from the exterior of the facility, such as parking and walkways, and the interior public toilet rooms, where the Plaintiff can enter and lock the door latch to evaluate the inside of the toilet room without anyone knowing. The Plaintiff may well overlook other ADA discrepancies that would require a more obvious effort to document.
In many cases the Defendant does not realize there is a problem until they receive a summons notifying them of the lawsuit and a very short time-line to respond. This is where you need a plan to respond. First things first, you will need an attorney and an expert specializing in the Complaint items listed in the lawsuit.
Finding an attorney who is experienced and knowledgeable in the ADA can be difficult. Many attorneys will claim they can handle your case but, in fact, they don’t know much about the ADA. Even if they do have adequate knowledge and experience in the ADA, they usually do not have experience inspecting a facility for ADA compliance.
One aspect of this process to be aware of is that many of these Complaints are poorly written such that the specific Complaint items are vague, misleading, and intended to frustrate the Plaintiff and their attorney. It is amazing the courts even allow some of these documents to be entered as a lawsuit. So it takes a while for the Defendant’s attorney and expert to wade through the Complaint to see what the issues are. For additional information please see ADA Lawsuits Dismissed for Lack of Evidence.
Another aspect of this process is that the Plaintiff usually places unrealistic time-line requirements on the Defendant, also in an apparent attempt to pressure the Defendant to settle or otherwise capitulate with respect to the Complaint. Your attorney will need to recognize this and request relief from the court on unrealistic time-lines.
Once you have determined who will be your attorney, the next thing to do is to verify the Complaint is valid. This is where the expert comes in. According to Seyfarth Shaw, “ADA experts and expert witnesses play important roles in ADA cases. As a pre-emptive measure, [entities should] consider employing an ADA expert to ensure all prototypical plans, construction, remodeling, rebranding, policies, and procedures are compliant with ADA guidelines and state accessibility laws. This measure ensures that when faced with an ADA lawsuit, [entities] can use the expert to prove the issues alleged comply with state accessibility laws, meet the ADA guidelines, demonstrate that the policies and procedures of the [entity] are compliant, and minimize costs once litigation has ensued.”
“If a[n entity] does not hire an expert proactively, it should retain an expert immediately once an ADA lawsuit has been filed [and received by the Defendant]. The expert should assess the allegations in the complaint, determine if the [entity] is ADA compliant, establish remediation measures if any are necessary, and create compliance guidelines to minimize the costs of litigation.” *
To assess the allegation(s) in the Complaint, a qualified expert in ADA installations will need to take a copy of the Complaint to the facility and check each item in the Complaint to see if they are valid discrepancies. A typical drive-by lawsuit will have 10-15 Complaint items listed. The individuals who are filing these drive-by high-frequency lawsuits are somewhat knowledgeable of the ADA and can find the low-hanging fruit very easily. The Department of Justice (DOJ) enforces the ADA. According to the DOJ, it only takes one valid item in a Complaint for the Complaint to be accepted in a lawsuit.
At this point the Defendant has some options. They can have the inspection and report written by the expert as a response to the Complaint only, or they can have a full ADA inspection and report written to identify any other items of ADA non-compliance. Another option is to have both reports written. The response to the Complaint is used by the Defendant’s attorney to process the lawsuit. The full ADA inspection report is used by the Client to alter the facility for ADA compliance in total. It is common for there to be other issues at the facility that the drive-by Plaintiff does not include in the Complaint. Each inspection/report comes with different costs, the response to the Complaint being smaller and cheaper. The full ADA inspection/report should identify most if not all discrepancies for ADA non-compliance. One benefit to this full ADA inspection/report is that it helps avoid other lawsuits by different Plaintiffs.
Once the ADA inspection(s) and report(s) are complete and sent to the attorney and Client, the attorney will help the Client decide how to proceed. The options are to fight the lawsuit using such legal maneuvering as mooting the alleged discrepancies and/or challenging the Plaintiff’s standing to file the lawsuit, settle, file a motion to stay, file to default, or something in between. These are legal options that your attorney should go over with you.
One thing that a Defendant should do is use the inspection report(s) to begin immediately to remedy (moot) any known ADA discrepancies. Don’t wait for resolution. If it is obvious what needs to be remediated the Defendant should try to moot out as many violations as possible, because “mooting violations cuts off the Plaintiff’s primary leverage, attorneys’ fees”. “This should be done even before mounting a legal challenge to any standing issues. Mootness is an effective defense to drive-by claims because easy to spot violations are also usually the easier ones to remedy.”* But make sure you know what to do for remediation. Too often Defendant’s waste time and money remediating a discrepancy only to find out later the remediation also violates the ADA.
SUMMARY: Most of the ADA lawsuits being filed are written by lawyers who work with serial Plaintiffs, otherwise known as high-frequency Plaintiffs. What’s important now is how you handle it if you are a Defendant in one of these cases. This article will provide information to help you move forward to resolve the lawsuit and hopefully prevent it from happening again. The best way to avoid and minimize exposure to serial ADA claims is to have accessible [compliant] buildings and websites.
*Some of the information within this article is based on a presentation by Seyfarth Shaw.
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