Known as “Drive-By Litigation,” Colorado is getting hit by a rash of lawsuits alleging that businesses are violating Title III of the Americans With Disabilities Act (ADA). Since April of this year, 20 lawsuits (and counting) have been filed against Denver area businesses by the same Plaintiff who is represented by the same two attorneys from Florida, for alleged violations of Title III of the ADA, including things like lack of ramps, narrow doorways, missing signage, doorknobs that can’t be opened by a closed fist, and misplaced soap dispensers and coat racks.
Most of the businesses are in well-to-do areas of Denver, such as The Highlands, LoDo, LoHi, and SoBo, and include everything from popular restaurants, hair salons, day spas, tobacco shops, muffler shops, delis, and donut shops, to even a motel and a tile and linoleum shop. Channel 7 News recently ran a news story that is worth viewing called “Colorado Businesses Claim Identical ADA Lawsuits Filed By Florida Attorney ‘Extortion.’”
What Is “Drive-By Litigation”?
Although premised on the altruistic goal of fighting disability discrimination, these suits have become a profit-driven, litigation machine of high volume, boilerplate complaints, filed with the ultimate goal of squeezing business owners so that the plaintiffs and their attorneys can profit quickly from cash settlements in the tens of thousands of dollars.
The problem with these cases is that the vast majority are not situations where a disabled individual truly felt discriminated against and sought out an attorney to help redress an injury due to a lack of accommodation. Instead, it is the lawyers who hire investigators to identify local businesses that are not in technical compliance with the ADA, and then recruit plaintiffs from disability advocacy groups to serve as the front person. The investigators take pictures and build the case while the plaintiffs merely “drive by” the establishment, without any honest intentions of ever servicing the establishment.
Once the boilerplate suit is filed, questionable litigation tactics are then employed, such as serving immediate discovery in violation of the rules, asking the courts to order the parties to a settlement conference to force a quick settlement, and refusing to accept agreements or assurances of ADA compliance without monetary payments, even though the ADA itself does not allow damages to be awarded to plaintiffs (the ADA allows only injunctive relief and attorneys’ fees).
Earlier this year, the New York Times reported that “[i]n the last year, 3,000 [accessibility] suits, including more than 300 in New York, were brought under the Americans With Disabilities Act, more than double the number five years ago.” Other states hit hard have been Ohio, Florida, California and North Carolina. This is an unfortunate and lucrative cottage industry in the legal profession, preying on small businesses who often times opt for settlement over litigation to avoid legal costs since they don’t have resources like Wal-Mart. But, in some cases, where business owners decide to fight back, courts have dismissed the suits, sanctioned the plaintiff’s attorneys for unscrupulous litigation tactics, and/or awarded attorneys’ fees to prevailing business owners.
What Can Businesses Do Before They Get Sued?
If you have not done an audit lately, or ever, it is a good idea to conduct an ADA accessibility audit. Self-audits can be done with good checklists, or by a professional. Also, it is important for business owners to review their insurance coverage to see if they have, or can obtain, insurance coverage for accessibility lawsuits.
What Should Businesses Do If They Get Sued?
You are not alone, so don’t go it alone. Engage competent counsel to protect your rights as a business owner. Legal arguments can be made to dismiss certain claims or to dismiss the entire case at the onset of litigation or after discovery, which can save thousands of dollars in legal fees.