Strategies for Defending ADA Accessibility “Tester” Lawsuits
May 27, 2016
Partner, Jaburg & Wilk
In the last 15 months, over 300 lawsuits alleging ADA accessibility violations have been filed by a handful of plaintiffs against Arizona multi-family building owners, commercial property owners, retailers, restaurants, and hotels. These “tester” cases assert nearly identical allegations related to insufficient handicapped parking, unequal access to the office/business entrance, improperly constructed restrooms, and lack of a pool lift chair. Each case seeks the same relief: attorneys’ fees, costs, and remediation of the property.
What Works, What Doesn’t Work and Why
Most business owners feel extorted when sued for ADA violations because the plaintiff may never have even been to the property. Oftentimes, this is sufficient to maintain an ADA claim if the plaintiff can establish a violation existed that dissuaded them from entering the property or patronizing the business. The plaintiff need not personally encounter the alleged non-compliant element to establish an “injury” under the ADA. Nevertheless, some ADA cases have been successfully defended by establishing that the plaintiff has no actual intent to return to the property, even if changed. With no intent to return, a plaintiff has suffered no injury, and thus has no case. Intent to return is generally the element most susceptible to attack. If a plaintiff files multiple ADA lawsuits, it can undercut the credibility of their intent to return. Additionally, courts consider the purpose for which the plaintiff initially visited the business. If there was only one visit, was it for services, or was it to gather evidence for a lawsuit?
Defense Strategies and Considerations
- Determine whether the ADA allegations are legitimate. To do this, consider having an ADA-savvy contractor survey the property. In many cases, a business must only bring its premises into compliance when “readily achievable” to do so, which is relative to the size and type of the business. Also, making such changes when no lawsuit is pending is the best way to prevent future suits.
- If the plaintiff resides out of state, has filed serial ADA lawsuits, or has only visited the property on one occasion (if at all), consider serving discovery and taking the plaintiff’s deposition to assess their claimed intention to return to the property if retrofitted.
- File an early offer of judgment. If the plaintiff doesn’t beat the offer at trial, he or she must pay costs incurred after the offer was made. By forcing the plaintiff to have skin in the game, they may reconsider whether your case is the one worth fighting.
- Be mindful of a potential investigation by the Attorney General. Under Arizona law, the AG’s office must investigate alleged ADA violations, which could potentially result in significant civil fines.
Property owners are wise to take ADA cases seriously. New lawsuits are filed weekly, sometimes daily. Formulate a proactive plan with your attorney and take affirmative steps to protect your interests.