How abusive serial ADA litigation is eroding the right to sue for the physically disabled
Bernhard Law Firm examines how the abusive practice of serial ADA litigation (shakedown lawsuits) destroys standing under Title III of the American Disabilities Act (the “ADA”). Title III of the ADA provides that no individual shall be discriminated against on the basis of disability in a place of public accommodation, requiring removal of physical barriers at public commercial facilities. 42 U.S.C. § 12182(a). Should your business or property face an ADA lawsuit, please contact Bernhard Law Firm at 786-871-3349, firstname.lastname@example.org, www.bernhardlawfirm.com.
The practice of serial litigation evidences no real imminent harm, extinguishing standing
An abusive serial ADA litigant is one who regularly files federal lawsuits against small businesses alleging minor or hypertechnical violations of the American Disabilities Act, even though the litigant is not a patron and has no intent to return to the commercial facility (i.e. the restaurant, gas station, hotel, or other place of public accommodation). These serial plaintiffs team with unscrupulous attorneys to split settlements leveraged out of these harassment suits. These serial ADA plaintiffs cannot maintain their actions because their practice of continuous and repeated litigation reflects that they have no specific, concrete, and credible intent to return to any particular facility, negating an imminent threat of injury and extinguishing standing.
ADA standing requires a specific, concrete, and credible threat of future injury
To demonstrate standing in an ADA action for injunctive relief, a plaintiff must show a “real and immediate threat of future discrimination.” Shotz v. Cates, 256 F.3d 1077, 1082 (11th Cir. 2001); see also Bird v. Lewis & Clark College, 303 F.3d 1015, 1019 (9th Cir. 2002) (Plaintiff must demonstrate “a sufficient likelihood that he will again be wronged in a similar way.”) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief if unaccompanied by any continuing, present adverse effects. Id.; Lamb v. Charlotte Cnty., 429 F. Supp. 2d 1302, 1307–08 (M.D. Fla. 2006).
The threat of future injury must be concrete, specific, and credible. Lamb, 429 F. Supp. 2d at 1309–10; Brother v. Tiger Partner, LLC, 331 F. Supp. 2d 1368, 1374 (M.D. Fla. 2004); Tandy v. City of Wichita, 380 F.3d 1277, 1288 (10th Cir. 2004) (holding mere allegations of an intent to frequent the defendant facility in the future do not suffice the standing requirements of real and immediate threat of repeated injury). Commenting on this requirement, the Eighth Circuit has held that “[i]ntent to return to the place of injury ‘some day’ is insufficient.” Steger v. Franco, Inc., 228 F.3d 889, 892–93 (8th Cir. 2000) (emphasis added).
To determine whether a plaintiff’s likelihood of returning to a particular establishment is sufficiently concrete, specific, and credible to confer standing, courts have examined factors such as: (1) the proximity of the place of public accommodation to plaintiff’s residence, (2) plaintiff’s past patronage of defendant’s business, (3) the definiteness of plaintiff’s plans to return, and (4) the plaintiff’s frequency of travel near the accommodation in question. See, e.g. Harris v. Del Taco, 396 F. Supp. 2d 1107, 1113 (C.D. Cal. 2005) (dismissing ADA claim on standing). Above all, Plaintiff must have “a continuing connection” to the subject property to support imminent injury. Brother v. Tiger, 331 F. Supp. 2d at 1375 (quoting Rodriguez v. Investco, L.L.C., 305 F. Supp. 2d 1278, 1284–85 (M.D. Fla. 2004)) (emphasis added).
Shakedown ADA lawsuits fail for lack of real imminent injury
The widespread practice of filing large numbers of lawsuits under Title III has drawn notice and commentary of a number of courts. See, e.g., Rodriguez, 305 F. Supp. 2d at 1280–82 (referring to ADA plaintiff as a “professional pawn in an ongoing scheme to bilk attorney’s fees”); Doran v. Del Taco, Inc., 373 F. Supp. 2d 1028, 1030 (C.D. Cal. 2005) (commenting on abusive “shakedown schemes”); Brother v. Tiger, 331 F. Supp. 2d at 1375 (calling for legislative solution to the unchecked vexatious ADA litigation). As explained by one court:
“The abuse is a kind of shakedown scheme: Attorneys form a front “watchdog” or “consumer” organization. They scour public records on the Internet for what are often ridiculously minor violations of some regulation or law by a small business, and sue that business in the name of the front organization. Since even frivolous lawsuits can have economic nuisance value, the attorneys then contact the business (often owned by immigrants for whom English is a second language), and point out that a quick settlement (usually around a few thousand dollars) would be in the business’s long-term interest.” People ex re. Lockyer v. Brar, 115 Cal. App. 4th 1315, 1317 (Cal. App. 4th 2004).
Courts have noted that this pattern of litigation, in order to be profitable to a law firm, requires high volume, which can be abusive. See Harris v. Stonecrest Care Auto Center, LLC, 472 F. Supp. 2d 1208, 1215 (S.D. Cal. 2007); Doran, 373 F. Supp. 2d at 1030 (in abusive ADA litigation, “[a]n unscrupulous law firm sends a disabled individual to as many businesses as possible in order to have him or her aggressively seek out all violations of the ADA.”). Typically in an abusive ADA litigation, a plaintiff files suit, extracts a cash settlement, and loses all interest in the defendant’s future compliance with the ADA. Molski v. Mandarin Touch Rest., 347 F. Supp. 2d 860, 866 (litigant’s modus operandi was “sue, settle, and move on to the next suit”). Such practices represent an end-run around the ADA’s limitations on remedies. Doran, 373 F. Supp. 2d at 1030 (“Enterprising plaintiffs and their attorneys have found a way to circumvent the will of Congress.”).
Because plaintiffs in these cases are focused on a short-term reward, the ADA action provides little, if any, long-term assistance to disabled persons who genuinely wish to patronize local businesses. Id. (observing that in abusive ADA litigation, monetary awards become more important than access for disabled persons, undermining the spirit and purpose of the ADA).
Federal courts must be diligent in observing standing requirements in these ADA cases. B.C. v. Plumas Unified School Dist., 192 F.3d 1260, 1264 (9th Cir. 1999) (holding that federal courts are required to examine jurisdictional issues such as standing, even sua sponte if necessary); Harris v. Stonecrest, 472 F. Supp. 2d at 1215 (citing B.C. v. Plumas). Particularly in view of a recognized trend of abusive ADA litigation, special diligence and vigilant examination of the standing requirement are necessary and appropriate to ensure the litigation serves the purposes for which the ADA was enacted. See Harris v. Stonecrest, 472 F. Supp. 2d at 1215.
A shakedown ADA action lacks any real imminent injury, and thus, lacks standing
Generally, shakedown ADA litigants lack a specific, concrete, and credible intent to return. In their boilerplate complaints, these plaintiffs merely allege an inchoate intent to visit the facility again in the near future. Courts have held that these ambiguous allegations of intent to return lack the required specificity and concreteness to sustain a proper ADA lawsuit.
For example, in Access for America, Inc. v. Associated Out-Door Clubs, Inc., 188 Fed. App’x 818, 820 (11th Cir. 2006), the Eleventh Circuit found no error in the district court’s conclusion that a plaintiff lacked standing to seek injunctive relief, where he lacked the requisite concrete and specific intent to return to the facility other than “someday.” 188 Fed. App’x at 820. In Rosenkrantz v. Markopoulos, 254 F. Supp. 2d 1250, 1253 (M.D. Fla. 2003), the court dismissed an ADA claim for lack of standing where plaintiff merely traveled to the defendant’s area “irregular[ly], occasional[ly], and infrequent[ly].” 254 F. Supp. 2d at 1253. In Access 4 All v. Oak Spring, Inc., 2005 WL 1212663 (M.D. Fla. May 20, 2005), the court dismissed an ADA claim for lack of standing where a plaintiff from Broward sued a facility in Ocala, expressing simply a general intent to travel to the same area in the future. 2005 WL 1212663 at *11.
The shakedown plaintiffs’ practice of serial ADA litigation renders their purported intent not credible. The reality becomes that serial litigants sue so many different establishments that it is impossible to believe they routinely visit all of them—discrediting any real threat of future harm, as required to maintain an ADA claim. See Brother v. Tiger, 331 F. Supp. 2d at 1374–75 (“[Plaintiff] has professed an intent to return to all fifty-four of the properties he has sued. This is simply implausible.”); see also Brother v. CPL, 317 F. Supp. 2d at 1369 (discussing the fact that plaintiff had filed over 50 Title III lawsuits in holding that the plaintiff’s stated intent to return to the hotel sued was not credible); Wilson v. Costco Wholesale Corp., 426 F. Supp.2d 1115, 1123 (S.D. Cal. 2006) (expressing concerns that plaintiff’s declaration of intent to return to each of the 80 establishments he had sued was implausible, and finding plaintiff lacked intent to return to the specific facility at issue in that case); Molski v. Mandarin, 385 F. Supp. 2d at 1046 (C.D. Cal. 2005) (finding that plaintiff’s extensive litigation history “undercuts his credibility and belies an intent to return” and concluding “[a]s a result, [plaintiff’s] professed intent to return to the [facility] is insufficient to establish standing”).
In determining whether, at the time of filing, a plaintiff is likely to return, a court should not consider evidence showing the plaintiff visited the facility or nearby attractions after filing suit. See Del Taco, 396 F. Supp. 2d at 1116 (refusing to consider plaintiff’s post-filing visit to the defendant restaurant in determining whether it was likely, at the time of filing, he would return). “If the courts were to consider [post-filing visits] as evidence of intent to return, plaintiffs could easily manufacture standing.” Id. As such, a serial litigant’s purported intent to return to the facility becomes implausible.
Further discrediting the serial litigants’ allegation of intent to return, a court should analyze the locations of other defendant-businesses sued by the serial plaintiffs to reveal no connection between them. The distances between the defendant-businesses often extend over many miles, and the routes between often reflect no continuous or regular pattern of travel. This haphazard array of travel and defendant selection contradicts the “continuing connection” to any particular defendant property as needed to support imminent injury. Brother v. Tiger, 331 F. Supp. 2d at 1375 (quoting Rodriguez, 305 F. Supp. 2d at 1284–85). Usually, the serial litigant has never before patronized the facility in the past, nor patronized it since. While a court might acknowledge that by some happenstance the serial plaintiff may visit the facility again, it is purely speculative and conjectural to infer that the plaintiff will actually do so.
These circumstances have been held insufficient to maintain an ADA lawsuit in Lamb v. Charlotte Cty., 429 F. Supp. 2d 1302, 1310–11 (M.D. Fla. 2006). The Lamb court found the facts did not give rise to an inference that future discrimination would occur, where the ADA plaintiff lived 75 miles from the property at issue and had no connection to the property; the plaintiff happened upon the property as he was aimlessly traveling the highways; the plaintiff had been to the property only two times and stated no specific and concrete plan to return; and the plaintiff had filed numerous lawsuits under Title III of the ADA. 429 F. Supp. 2d at 1310–11. The Lamb court held that the plaintiff’s allegations of intent to return were not credible, and that even if his intentions were credible, they lacked the specificity required to maintain a suit for injunctive relief. Id. at 1311.
In sum, because serial litigants cannot show the past patronage, definiteness of plans, or frequency of travel nearby to show a real threat of imminent injury, they cannot establish standing, and the Court should dismiss for lack of subject matter jurisdiction. See Lujan, 504 U.S. at 560; Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999).
Dismissal of shakedown actions furthers the policy of the ADA
It hardly needs to be said that shakedown ADA lawsuits “undermine both the spirit and the purpose of the ADA.” Brother v. Tiger, 331 F. Sup. 2d at 1375; see also Lamb, 429 F. Supp. 2d at 1310. Florida courts continue to note that “this ‘cottage industry’ has turned the noble mission of the ADA into ‘an ongoing scheme to bilk attorney’s fees’ which continues to ‘cr[y] out for a legislative solution.” Rodriguez, 305 F. Supp. 2d at 1280; Brother v. Tiger, 331 F. Supp. 2d at 1375. This takes precious judicial resources away from the consideration of those cases in which plaintiffs with actual, concrete injuries lack meaningful access to their schools, jobs, and other facilities. Thus, courts should hold that because, as of the date of filing a complaint, serial plaintiffs are not likely to return to the defendant facility, they lack standing to bring a Title III ADA claim.