“Don’t fire till you see the whites of their eyes” was William Prescott’s famous advice to the colonial soldiers defending Bunker Hill, and that kind of patience can be important to ADA defendants as well. Property owners and operators sued under the Americans with Disabilities Act always face a strategic choice: Should they simply remediate and settle, or should they attack the plaintiff’s standing to bring the lawsuit, which is frequently dubious at best. In most cases remediation and settlement is the best choice because the cost of defending the lawsuit and winning is more than the cost of remediation. Sometimes, though, a plaintiff just won’t settle. He or she may insist on work that the ADA doesn’t require or attorneys’ fees that are too high for the settlement to be reasonable. When that happens, and a legal battle is inevitable, choosing the right strategy is the key to minimizing expense while achieving a good outcome. A California case, Feezor v Patterson, 896 F.Supp.2d 895 (E.D.Cal. 2012) shows how patience worked to the defendant’s advantage and lead to a complete win without unnecessary expense.
In Feezor the plaintiff leveled a number of complaints, both plausible and implausible, against the defendants. Instead of attacking the plaintiff’s standing in a Rule 12(b) motion the defendants did what I always recommend: Fix First Then Fight. They remediated non-compliant features of their stores, and when it was clear remediation was not enough, they timed their legal defense to come at the time when it was most likely to succeed. Bypassing any early motion practice they engaged in some discovery, including a deposition of the plaintiff. This allowed them to find proof that the plaintiff had not actually been deterred from visiting their stores by the alleged ADA violations. When they finally brought their standing motion it came in the form of a Motion for Summary Judgment. Instead of being required to indulge any presumptions in favor of a vague or inadequate pleading the Court could look at the facts, including the truth of what happened to the plaintiff instead of the lawyerly evasions found in many ADA complaints. With the facts before it the Court had no difficulty deciding that the plaintiff lacked standing. Patience permitted the defendants to prevail on a standing motion that rarely succeeds when based only on the pleadings.
The Court decided the case on standing, but the opinion makes it clear that the Court was impressed by the fact that remediation had already mooted most of the plaintiff’s claims. Remediation gives a defendant the moral high ground, and all experienced trial lawyers know that even the best purely legal arguments are stronger when they come from a party that has done the right thing. Fix First, then Fight is the best approach to the defense of every ADA case.
