money-and-justice-scalesThe attorney’s fee provision in the ADA, 42 U.S.C. §12205, is perfectly even handed. It simply allows the court to award attorneys fees in its discretion. Nonetheless, courts consistently hold that ADA lawsuits should be treated like civil rights cases under Title VII, in which a prevailing plaintiff always recovers fees, but a prevailing defendant can only recover fees if the plaintiff’s claims were groundless or without foundation. See, Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1203 (10th Cir. 2000), applying the rule in Christiansburg Garment Co. v. Equal Employment Opportunity, 434 U.S. 412, 98 S.Ct. 694 (1978). This asymetry gives plaintiffs a powerful advantage in any ADA lawsuit and is one factor that drives most cases to early settlement because plaintiffs have nothing to lose and everything to gain while defendants have everything to lose and nothing to gain. Although the train has long since left the station on this interpretation of 42 U.S.C. §12205, it is time for the courts to carefully analyze just how to apply the existing standards in the context of modern Title III ADA litigation.

Courts should start with their analysis of a defense claim for attorney’s fees with the fact that the violations most likely to give rise to an ADA are objectively verifiable.  A reasonable investigation of a claimed barrier to access must include measuring slopes, widths, heights and other critical dimensions, because those measurements define the existence of most violations. Almost any violation that a plaintiff pleads and that the Court later finds does not exist represents a violation of Rule 11, because the existence of the violation is almost never subject to reasonable dispute. Peters v. Winco Foods, Inc., 320 F. Supp. 2d 1035, 1040 (E.D. Cal. 2004) aff’d, 151 F. App’x 549 (9th Cir. 2005) is a good example of a Court getting it right. The plaintiff’s sweeping allegations included only one that was sustainable, and since the others were clearly without foundation defense attorney’s fees were appropriate.

It is also clear that because the only relief available under the ADA is injunctive, the remediation of any violation makes further pursuit of claims based on that violation groundless. The Court’s observations in Kallen v. J.R. Eight, Inc., 775 F. Supp. 2d 1374, 1381 (S.D. Fla. 2011) should serve as a model for other courts faced with lawsuits that continue after remediation:

Because of this failure to engage in the due diligence required by Rule 11 of the Federal Rules of Civil Procedure, and Plaintiff’s further insistence on proceeding with his claims after they were clearly rendered moot, the Court finds this lawsuit to be frivolous, unreasonable and groundless, subjecting Plaintiff to payment of Defendant’s attorneys’ fees and costs.

Defendants often complain that they do not receive pre-suit notice or an opportunity to remediate ADA violations. If more courts were willing to recognize that remediation not only moots these claims, but also makes further pursuit of the claims frivolous, plaintiffs would learn to dismiss moot lawsuits instead of pursuing them for no purpose other than to obtain an award of fees.

The asymetry of attorneys fee awards in ADA and other civil rights cases is usually justified by the “chilling effect” if plaintiffs risked an economic loss. There are two problems with this justification in modern ADA litigation. First, there is little risk that a plaintiff who complies with Rule 11 will ever file a groundless lawsuit because most violations are objectively determinable. The only plaintiffs at risk are those who file boilerplate allegations without having investigated their claims. Second, most ADA litigation is filed as a profit-making enterprise by a relatively small number of plaintiffs and law firms, and many cases target small businesses with limited economic resources precisely because the asymetry of attorneys fee awards forces these economically weak defendants to settle. Defense attorney’s fees are unlikely to seriously impact an industry as large and well financed as the ADA litigation industry.

There is no doubt that the ADA is a civil rights statute, but the wholesale adoption of legal principles that were developed fighting intentional acts of racism into a no-fault statute whose violators are often guilty of nothing more than ignorance doesn’t make much sense. However, Courts should have little difficulty awarding prevailing defendants their attorney’s fees by applying the well established standards for such fees to plaintiffs who file or pursue objectively groundless claims.