Defeated businessmanThe defendant in Johnson v. Patel, 2017 WL 3953949 (E.D. Cal. Sept. 8, 2017) used an increasingly common strategy to deal with an ADA lawsuit. He gave up.  Most lawyers would never recommend complete surrender as a strategy, but in the last two years we have seen a significant number of these cases from California, so it is worth asking whether allowing a default can ever be a good strategy.

Johnson v. Patel is a typical default case. The defendant, a motel, never filed an answer and allowed a default judgment to be taken against it. The Court, as one would expect, found the allegations in the complaint to be true, awarded statutory damages under California law, awarded attorney’s fees, and entered an injunction requiring remediation of the alleged barriers to access. This will cost the defendant about $13,000 in cash ($8,000 in statutory damages and a little more than $4,000 in attorneys’ fees) and require it to remediate the items listed in the complaint, which may or may not really need remediation.

It could hardly have done better had it filed an answer and tried to settle the case. Because damages, attorneys and an injunction are inevitable if there are real barriers to access plaintiffs rarely settle for less, and the attorneys’ fee component only goes up as the case goes on. A defendant with existing barriers to access is only going to increase its total cost by the amount of its own attorneys’ fees if it decides to fight. It also takes the risk of expanded remediation, because a property inspection is likely to discover problems the plaintiff, especially a serial plaintiff, did not take the time to discover.

The only cheaper way to deal with this kind of lawsuit is to remediate all the barriers to access so quickly that a mootness defense eliminates the cash outlay for attorneys’ fees. Still, the monetary damages remain to be recovered by the plaintiff in a state court action, and the cost of filing an answer and motion to dismiss is likely to exceed what this plaintiff got in a default judgment. It is also likely to trigger that additional property inspection as the plaintiff fights to keep the case alive. Giving up may be the most effective strategy, and it at least postpones if it does not eliminate spending money on remediation.

This doesn’t mean default is always a good strategy. Controlling the pace of remediation through a settlement may be a good idea when the plaintiff alleges extensive and expensive to fix barriers to access. Filing an answer is also the only way to effectively raise the defense that barrier removal is not readily achievable. Large or well known businesses may simply find that defaulting creates too many image problems, especially if the default is publicized by the plaintiff. A defendant contemplating default should always discuss these strategic considerations with a lawyer. Default is a strategy, not a panacea.

The best strategy, of course, is to have no barriers to access, especially not barriers that are visible from the street or a parking lot. “Fix First, Then Fight” has been our motto since we started practicing in this area, and it still represents the most basic principle for defending ADA lawsuits whether the plaintiff is a low-life serial filer or a high-toned disability rights organization.

NOTE: Our blog on “Strategies for Surrender” discusses another kind of surrender, the Rule 68 Offer of Judgment, which has benefits and risks as well. Since that blog we’ve been able to use Rule 68 offers successfully in a few cases, but care is still required.