Like most lawsuits of all kinds, ADA cases almost always settle, usually sooner rather than later. Except where damages are an issue, as in California, the settlement has only three components: what ADA violations will be fixed, when will they be fixed, and how much money will the plaintiff and plaintiff’s attorneys get. The presence or absence of a violation of the ADA Standards is usually not subject to dispute, and the readily achievable standard is heavily weighted against the defendant, so the when and where of remediation are generally not hard to resolve. The hard bargaining comes when the plaintiff makes his demand for fees. ADA plaintiffs and their lawyers have been thoroughly demonized in some parts of the press and blogosphere, but even if you think the plaintiff is the devil, it is useful to know how to calculate his price.
Defendants have an important advantage in settlement negotiations thanks to the Supreme Court’s holding in Buckhannon Board & Care Home v. West Virginia Department of Health & Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) that a plaintiff cannot recover attorneys fees unless there is a “court ordered change in the legal relationship between the plaintiff and defendant” that favors the plaintiff. If the defendant moots the case by remediating before the case comes to judgment the plaintiff will not recover fees. See, Rush v. General Growth Properties, Inc., 2012 WL 1115518 (C.D. Cal. 2012). This is a key point that defense counsel sometimes overlook. The defendant can always win by remediating, just as the defendant will always lose if it refuses to remediate indisputable violations of the ADA. Because of this, plaintiff’s counsel can only make money in most ADA cases if he settles early, before remediation is complete.
Plaintiffs like to settle early, but they won’t usually settle for free. How much does settlement cost over and above remediation? Smart defendants will agree to pay attorneys fees to the plaintiff as long as the settlement cost is less than the cost of winning. Experienced ADA defense counsel can file a Motion to Dismiss or Motion for Summary Judgment based on mootness for a reasonably low price because he or she will not have to charge for the basic research; however, a “reasonably low price” in federal court is certainly thousands of dollars. Plaintiffs know this, and their demands are usually set at a level low enough to tempt the defendant to give up winning and settle instead.
The settlement dynamic can be more complex if there are real issues about what remediation is required or the defendant simply cannot get the work done fast enough to avoid the expense of litigating the case to some extent. In the end, however, remediation is an unavoidable cost and the issue is how much the defendant pays its counsel to win versus how much it pays the plaintiff’s counsel to settle.
Defendants find this equation aggravating, just as they find lawsuits about what they think are unimportant discrepancies to be aggravating. That aggravation can be turned to profit by defense counsel, but the wise defendant will do the math and take the reasonable settlement that is almost always available when the remediation work is done or is being done. It may feel like paying the devil, but sometimes its cheaper than paying the angels.