A December 30 opinion from the Eastern District of New York should remind businesses that the obligation to comply with the ADA does not depend on the moral quality of the plaintiff. While judges do not like plaintiffs and lawyers who merely exploit the ADA for profit, they also understand that the law is the law.
In Adams v. 724 Franklin Ave. Corp., 2016 WL 7495804 (E.D.N.Y. Dec. 30, 2016) the defendant’s counsel, aware of past cases in which the district court had shown a certain hostility to serial litigants, decided that instead of defending the ADA lawsuit against his client he would offer a small settlement and then dare the plaintiff to take a default judgment. The court characterized his correspondence with plaintiff’s counsel in these words:
Mr. O’Donoghue based his negotiations, in part, on his claim that the undersigned (this Court) “does not like these cases” and informed plaintiff’s counsel that if they did not accept his settlement offer, “I am fine to let the case get defaulted and see what you can get from the judge.” Another email in the string from Mr. O’Donoghue cites a newspaper article reporting on my decision in another ADA case in which I questioned whether the plaintiff’s attorney there, who filed dozens of cases on behalf of the same plaintiff, had any genuine interest in making the establishments she sued ADA-compliant, as opposed to collecting attorneys’ fees. A third email from Mr. O’Donoghue accuses plaintiff’s attorney of having been sanctioned, although it does not say for what.
Id. It is a mistake, in any kind of lawsuit, to claim to know what the judge is going to do. The judge may think your presumption shows an unseemly arrogance. This is especially true in an ADA case because no matter what the court thinks of the plaintiff, the statutory requirements are clear, and the moral character of the plaintiff doesn’t change the obligation to comply with the statute.
The court’s resolution of the plaintiff’s motion for default was straightforward. The defendant was ordered to submit remediation plans based on the assumption that all the alleged violations existed and could be remediated at reasonable cost. The plaintiff’s counsel was invited to submit his attorneys’ fees. By defaulting the defendant gave up any defense that the remediation was not readily achievable or that the alleged violations did not exist. For a business in an older urban building that can be a serious problem. In addition, the court’s order makes it clear that the defendant will pay the plaintiff’s attorney to monitor compliance with the court’s injunction.
The lesson here is clear. Businesses with ADA issues will have the moral high ground only to the extent they show a willingness to remediate ADA violations, and having the moral high ground makes technical and procedural defenses that much stronger. Fix first, then fight or even the most defense oriented judge is likely to view you as just another lawbreaker.