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. More
There really isn’t a legal definition of abusive litigation. For many property owners every ADA lawsuit is abusive. On the other hand there isn’t a single plaintiff who thinks his or her lawsuit is abusive. My own definition has to do with what the lawsuit is intended to accomplish. If the goal is to help the disabled by eliminating barriers to access it is legitimate. If the goal is generating legal fees then no matter what the merits the lawsuit is abusive. More
Well, that may be a little overwrought. We’re talking here about a guy with a clipboard and a tape measure – no rubber gloves are involved. Still, it’s hard not to feel violated when a federal judge orders you to allow someone to inspect your property. This is especially true when you know that person’s sole reason to be there is to find violations of the ADA accessibility standards for a plaintiff who never knew they existed. A feeling of violation won’t stop the inspection however. The achievable goal is to make the inspection irrelevant, or at least limit it.
The problem of inspection for ADA and FHA cases almost always comes up in the same way. The plaintiff alleges that he or she encountered one or more barriers to access. If the case survives a motion to dismiss the plaintiff then asks for an inspection of the property to find additional violations that are unknown, but will, if found, be added to the lawsuit. The owner argues that if the plaintiff doesn’t know about a violation then the violation cannot have caused harm and shouldn’t be part of the lawsuit. Putting aside the legal principles involved, the heart of the argument on both sides seems to be an attitude that ADA litigation is a game in which property owners try to avoid the expense of compliance while disabled plaintiffs try to act as super advocates for all those with disabilities instead of seeking a remedy for the discrimination they have personally experienced. Like most legal games this one primarily benefits the lawyers. More
It has been a relatively slow week for ADA accessibility filings in North Texas, with only one new lawsuit against a strip center in Plano. However, that new lawsuit provides a nice case study of the kinds of legal issues these cases raise.
The problems of standing mentioned in my last post are present in abundance. The plaintiff alleges that she went to the shopping center to visit a restaurant and “ran into” architectural barriers at the center. It is clear from the complaint itself that she didn’t run into all the barriers to access that she lists. For example, she claims that there is no accessible route to the center from the nearest public sidewalk and that there is not adequate accessible parking. If she took a car, then the public sidewalk wasn’t a problem for her. If she took a bus then the parking didn’t matter. She might have been injured by one kind of discrimination or the other, but not both. There are also general allegations of excessive slopes and a lack of accessible routes to “many of the businesses.” Since the plaintiff states that she visited the center to go to a specific restaurant the lack of accessible routes to other businesses could not have caused her any injury. More
Every few months another district court confronts the inherent tension between private enforcement of laws like the ADA and the standing requirements for individual litigants in the federal courts. The Constitution regards private lawsuits as a means to vindicate private rights, and the constitutional requirements for private litigants make an uneasy fit with the goal of promoting public policies concerning accessibility for those with disabilities. The Constitution requires that a private litigant have “ standing,” which means that the party ust have suffered an injury caused by the defendant that the courts can somehow fix. In ADA litigation neither the injury nor the court’s ability to fix it may be obvious. The result is a mishmash of inconsistent approaches to standing that leaves little certainty for litigants. More