The Age of the Drive-By Lawsuit: Title III and Defending Against Vexatious Litigants
The American with Disabilities Act (ADA), as with almost all legislation in this country, is well-intentioned and does in fact serve a very powerful purpose in the modern world. People who have disabilities that make them differently-abled than most are still citizens with all the rights of their neighbors, and as a result, they deserve to have access to the same services and benefits as everyone else. Requiring businesses to make reasonable efforts to make their services accessible is in keeping with this country’s overall spirit of egalitarian and fair-minded camaraderie. After all, no one confined to a wheelchair should be prevented from using a public restroom.
However, as many owners and operators of public-use properties such as hotels, shopping malls, and other facilities have discovered, flaws in the ADA – especially the notorious Title III – make it extremely easy for people with disabilities to file lawsuits designed solely to extract money from the business in question. These so-called “Drive-By” suits (called such because the plaintiffs rarely have any real desire to use the facilities they are complaining about) have escalated to an epidemic as aggressive and ethically-challenged law firms have realized the profit potential.
Title III allows for these suits to be filed when a disabled person finds they cannot enjoy equal use of a facility because the operator/owner hasn’t made the required minimum efforts- such as installing wheelchair ramps for access. However, several flaws in the law make it an imperfect tool:
- Currently, complainants are not required to notify the property or business or give it any chance to correct the violations or oversights before a suit is filed. As a result, the first time a business is made aware of problems is often when the lawsuit is served.
- Plaintiffs are also often able to file claims in State courts to collect additional awards on the same complaint.
- Nothing stops law firms or even single attorneys from collecting large numbers of plaintiffs complaining about the same properties, often swelling these cases into monumental actions.
- Plaintiffs cannot legally recoup attorney’s fees unless there is a lawsuit in place, giving them zero reason not to file a suit.
Defending Against Title III
Currently, there are three standard strategies for defending against a Title III lawsuit:
- An increasing number of judges have demonstrated a willingness to deny attorney’s fees based on a lack of pre-litigation notice. Although the ADA does not require such notice, judges have discretion in awarding fees and are becoming more likely to punish plaintiffs and attorneys they see as being too quick to file a suit when a simple notice might have solved the problem.
- Many of the plaintiffs involved in these “drive-by” lawsuits are involved in multiple other suits as well, often with many attorneys or with a single firm representing many other disabled plaintiffs. Having these plaintiffs declared “vexatious” by a judge means they cannot file any further suits without the court’s permission.
- Finally, an attack on standing has been known to work; if it can be demonstrated that a plaintiff has no real intention of ever returning to or utilizing a facility, they have no standing for a complaint under the ADA. These challenges are difficult, but have been successful in certain circumstances.
All American citizens have the right to enjoy public space or public-use facilities equally, and no one would argue otherwise. However, a flawed law designed to protect those rights has instead created a situation where property owners and operators are not given a fair chance to do the right thing before being forced to pay out large settlements. Until the law is changed, knowing how to defend against these situations can do wonders to keep businesses afloat and out of trouble.