The defendant in Johnson v. Patel, 2017 WL 3953949 (E.D. Cal. Sept. 8, 2017) used an increasingly common strategy to deal with an ADA lawsuit. He gave up. Most lawyers would never recommend complete surrender as a strategy, but in the last two years we have seen a significant number of these cases from California, so it is worth asking whether allowing a default can ever be a good strategy. More
First Fix, Then Fight – the foundation of ADA defense.
By Richard Hunt in Accessibility Litigation Trends, ADA - Standing, First Fix Then Fight Tags: ADA defense, ADA defense strategy, ADA dismissal, ada litigation, ADA pleading
“First Fix, Then Fight” has been this blog’s slogan and trademark from the beginning. This isn’t based on a philosophical opposition to litigation, which is sometimes unavoidable, but on a hard headed assessment of the economics of ADA litigation and the difficulty in winning in the early stages of a case. Last week’s decision in Burrell v. Akinola, 2016 WL 3523781 (N.D. Tex. June 27, 2016) demonstrates why first fix, then fight has to be the foundation for ADA defense.
In Akinola the plaintiff sued the defendant for various violations of the ADA. The allegations of violations were not very specific, and the allegations related to the plaintiff’s standing were also somewhat general. Of course a dismissal based on pleading standards or standing is very hard to obtain, and perhaps with this in mind the defendant chose to attack whether there was any allegation of discrimination at all; that is, had Burrell alleged a violation of the statute. More