The intervention of the Arizona Attorney General in more than a thousand cases filed under Arizona’s ADA equivalent has been big news for some time in the ADA litigation world. (see our blog, Arizona Attorney General Intervenes to stop abusive ADA litigation) Now, according to the latest news stories (click here), the Attorney General will seek to have the entire group of cases dismissed on standing grounds. The result is still uncertain, but reports that the plaintiff never visited most of the locations sued seem to point toward a decision favorable to the State.
Judge David Ezra of the Western District of Texas has ordered a similar consolidation of 22 cases filed in that District by two separate plaintiffs represented by a single lawyer. Bryson v. Plaza Oaks BPRE Investors, Inc., Case No. 7:16-cv-029-DAE (WD Tex. Sept. 8, 2016). The purpose of the consolidation is to resolve issues concerning standing that would otherwise be taken up on a case by case basis.*
In scope, these are firsts for ADA litigation, but the concept isn’t entirely new. This last May a judge in California dismissed several more or less identical cases involving a single lawyer and plaintiff. See, “Cheap Standing” under the ADA. Other courts faced with dozens or hundreds of implausible standing claims have done the same on a case by case basis. The problem with case by case determinations is, of course, that it is easy to plead standing, and a substantive defense is too costly. The leverage serial filers have and use to extract settlements in ADA cases comes from the fact that in any single case the cost of defense will vastly exceed the cost of settlement. Consolidation of cases for discovery and a determination of standing reduces the cost on a per-suit basis and accelerates the determination of standing so that the plaintiff’s right to sue can be established before experts are hired or the parties must engage in discovery on other issues. Pleading standing is easy; proving standing is hard, and requiring that proof destroys the profitability of serial litigation.
For now, defense counsel should note the availability of this procedural tool. When a single plaintiff or law firm files dozens of suits in a short period of time consolidation to determine standing makes perfect sense both as a matter of procedural law and as a strategy to get rid of cases filed for no purpose other than to profit the lawyers.
*The Motion to Consolidate was filed by the authors of this blog. It will be several months, at least, before the Court takes up the substantive question of standing, so the outcome is uncertain.