ADA serial litigation problems? – Don’t get mad, get even.
This post was inspired by an article forwarded from fellow ADA blogger William Goren, whose blog contains excellent analysis of current cases. The article describes a Florida hotel’s fight against a local serial ADA complainant who, it appears, may be afraid to go to trial on the lawsuit he filed. It isn’t clear how the case will end, but the defendant has William Norkunas on its side. Norkunas is himself a frequent ADA plaintiff and has served as an expert witness in more than a thousand cases. He is clearly an advocate for ADA enforcement, but is quoted as saying that the plaintiff in this particular case is operating a “continuing criminal enterprise that boils down to extortion.”
Is it really possible for a defendant to win an ADA case? The answer is yes, and it is worth looking at a couple of recent cases to see how. The first is Rocca v. Den 109 LP, 2015 WL 5601810 (C.D. Cal. Sept. 23, 2015). In Rocca the plaintiff, like many ADA plaintiffs, had a laundry list of alleged violations, some real, some not, and some trivial. California’s state version of the ADA encourages this by setting a per violation statutory damage amount. The case went all the way to trial, with the defendant losing on some violations and winning on others. There is no hint as to what this cost in attorneys fees, but I think we can be sure the defendant spent a lot of money, none of which it got back.
Despite this the defendant got the kind of victory that warms the hearts of all ADA defendants. The Court denied Rocca’s request for more than $30,000 in attorneys’ fees. It explained this decision as follows:
As some judges have observed, the ability for law firms and attorneys to profit from the ADA has led to attorneys, disinterested in ensuring greater access to places of public accommodation for people with disabilities, to file numerous lawsuit intending to recover large fees. Molski , 347 F. Supp. at 863. This theory was further supported during the bench trial, as the Court found that the only purpose for Rocca to visit Defendants’ restaurant was for finding violations. (ECF No. 54 at 6–7.) Awarding Rocca’s disingenuous practice and his attempt to extract fees from unjustified efforts would disrupt the equity already achieved through the accessibility changes Defendants have and are required to perform. To award fees for Rocca’s questionable conduct would be unjust.
Since the ADA does not permit a winning defendant to recover fees in most cases this is really as good as it gets for a case that goes all the way to trial.
Unless, of course, there is a state law counterclaim. Note that the Court found Rocca’s only reason to visit the restaurant was to look for violations. This is probably true of many serial ADA filers, but in one case, Access for the Disabled v. EDZ, Inc., No. 8:13-CV-3158-T-17TGW (M.D. Fla. 2015) the defendant’s counsel filed a counterclaim for trespass, arguing that the implied license for visitors to enter the premises extended only to those who intended to buy goods and services. The plaintiff, it argued, had no such intent and was therefore a trespasser under Florida law. The Court refused to dismiss this claim in an opinion reported at 2014 WL 5380006. This April the defendant won with a verdict that there was no discrimination against the plaintiff and that the plaintiff was a trespasser. The victory was somewhat hollow because the jury awarded only $1.00 in damages, but I suspect the defendant was pleased to have denied the plaintiff a victory and made its point that there is something fundamentally wrong with plaintiffs who use the ADA as a machine to make money with little or no regard for the purposes of the ADA.
These and a few similar cases demonstrate that a business willing to stand on principle and spend money on lawyers can win and deprive serial plaintiffs of the one thing they often want most; attorneys fees. It isn’t going to be the most economical decision, because early settlement is almost always much cheaper. Nonetheless, a business that follows my maxim, “Fix First, Then Fight” can face a serial ADA litigant with the knowledge that if it has complied with the law it has a chance to defeat an unreasonable plaintiff and even make the plaintiff pay, even though it may only be a dollar.