On July 17 of this year the District Court for the Southern District of California awarded attorney’s fees of $550,000 against Chipotle Mexican Grill in a lawsuit that had been pending since 2005. A month later, on August 28, the same Court refused to certify a class in a lawsuit brought by the same plaintiff alleging the same violations of the ADA. What happened in the two lawsuits is a perfect illustration of my own slogan for ADA defense, “Fix First Then Fight.” The story of these lawsuits also demonstrates the dangers associated with attacking the plaintiff instead of attacking the problem.

The first lawsuit was filed by an individual with a long history of filing ADA claims. The Unruh Act, California’s equivalent of the ADA, permits fairly substantial damages, and the plaintiff was profiting from his litigation activity. After motion practice and a bench trial the Court denied the injunctive relief he sought, awarded his attorneys about 20% of their fees (still more than $100,000), and awarded him a rather small amount of damages. Not a perfect victory, but Chipotle did avoid having to make changes to its serving lines, which is what the lawsuit sought.  There’s no way of knowing everything the judge thought, but the fact that some 20 paragraphs of fact findings were devoted to the plaintiff’s litigiousness suggests that the outcome was influenced by attacks on the plaintiff’s bona fides.

On appeal Chipotle didn’t do so well. The Court of Appeals found that Chipotle’s defense of equivalent facilitation was legally wrong and that the award of attorney’s fees had to be revisited given the fact that the plaintiff was about to get everything he asked for.

In the meantime however Chipotle had changed its approach toward the ADA violation and began a statewide renovation of its stores to bring them into compliance with the ADA Guidelines as the Court of Appeals had ultimately interpreted them. By 2012 the process was complete not just with respect to the two stores visited by the original plaintiff, but all its other stores in California as well.  All that was left for the District Court to decide was the plaintiff’s attorney’s fees. The final award, while large, was only about ½ of what the plaintiff’s attorneys sought.

The class action, which was filed in 2006, had been consolidated with the original case for discovery and seems to have remained in limbo while the first case was on appeal and remand. By the time the motion for class certification was filed there really wasn’t much left to do. Chipotle had already fixed the problem on which the lawsuit was based. The same District Judge that had awarded a half million dollars in attorney’s fees in July refused to certify a class in August because the claims were moot. He gave the plaintiffs leave to amend if they could somehow show their claims were not moot, but it looks like it’s all over but the shouting.

Don’t attack the plaintiff instead of attacking the problem. The plaintiff in both lawsuits was easy to dislike, at least for a business owner. His motives appeared mostly economic, and in many cases he sued stores he patronized only in order to find a lawsuit. Having a “bad” plaintiff made  Chipotle’s equivalent facilitation defense look much better, but it didn’t deal with the real problem, which was that people in wheelchairs didn’t get the same “Chipotle experience” as those who could walk.

When Chipotle attacked that problem instead of the plaintiff it did much better. Instead of relying on not being the bad guy, Chipotle went to Court in 2012 as the good guy who had spent a lot of money fixing a problem in order to make sure all its customers had the same good experience. The result was a win that, while expensive, was certainly cheaper than the cost of doing the same thing after another several years of litigation. Had Chipotle chosen to “Fix First Then Fight” the original lawsuit it might have spared itself even more attorney’s fees and avoided the class action altogether.  Two keys for ADA accessibility defense are always the same: Attack the problem, not the plaintiff, and Fix First Then Fight.