monkimage.phpThis is a short follow-up to my May 14 blog “know when to fold ’em.” A couple of weeks after I published that piece a decision came out from the Northern District of Georgia that dramatically illustrates the risk of a vigorous defense in a losing case.

Defense counsel interested in the legal principles that guide attorney’s fee awards in ADA cases will find it useful to read the full opinion in Gaylor v. Greenbriar of Dahlonega: Shopping Center, Inc., 2014 WL 2195719 (N.D. Ga., May 27, 2014) . However, the gist of the holding can be found in one short paragraph:

The Court notes that the number of hours expended by Plaintiff’s counsel was largely due to Defendant’s own litigious conduct. The record shows that Plaintiff attempted repeatedly to settle this case before significant litigation occurred. . . . . Although Defendant expressed a willingness to correct the alleged architectural barriers, it balked at Plaintiff’s demand for payment of $6,700 in attorneys’ fees. . . .  Plaintiff offered to settle the remainder of the case and either negotiate the attorneys’ fees or have the Court resolve the issue. . . . . Plaintiff also provided Defendant an itemization of his attorneys’ fees and continued to offer to settle for the original demand even after those fees had increased significantly. . . . . Defendant did not respond to these proposals. Instead, Defendant chose to pursue a noholds-barred litigation strategy. (internal citations omitted, emphasis added)

The final fee award was $117,201.23, more than $100,000 in excess of the plaintiff’s original demand. The Court did make significant cuts in the fees originally claimed, which were around $138,000, but I suspect this was of little comfort to the defendant, who was ordered to remediate most of the barriers to access claimed by the Plaintiff in addition to paying the Plaintiff’s lawyers for their efforts.  It is worth noting that the Court looked at the settlement history in determining what fees were reasonable.  While settlement discussions are not admissible to show liability, they can be considered in determining whether the plaintiff’s fees are reasonable. A defendant who wants to take advantage of this may find it useful to make a good offer (remediation plus fees) early on even if it is unlikely the offer of judgment rule will come into play.

No matter what a defendant thinks about the moral qualities of a serial plaintiff, attorney’s fees are awarded to a plaintiff based on the existence or non-existence of barriers to access. A defendant who wants to fight the good fight in order to prove a point or discourage future litigation must first make sure that the property perfectly complies with the ADA Standards or there is a very strong defense based on achievability. Such defenses are rare in the lawsuits filed by serial litigants because these lawsuits focus on parking and sidewalk slopes, both of which can be cheaply and easily corrected. A hard-fought case against a typical serial plaintiff is likely to result in the defendant paying two big legal bills, one from the defendant’s own lawyer, and one from the plaintiff’s lawyer. For ADA defense there is one universal rule: Fix First, Then Fight.