In the last 15 months, over 200 complaints alleging ADA accessibility violations have been filed by three individual plaintiffs against Arizona retailers, restaurants, and hospitality entities. These "tester" cases assert nearly identical allegations related to improper construction of restroom facilities and check-out counters, and, in the case of hotels, failure to provide a pool lift. Two of the plaintiffs claim to reside in Arizona and one resides out of state, but all threen seek the same remedies: injunctive relief to retrofit the property and attorneys' fees and costs.

Although much has been written to put businesses on notice of these lurking claims, little has been written on whether and how to defend them. Now, however, we have the benefit of 15 months of procedural history in these tester cases to teach us what works, what doesn't work, and why.

Legal Framework

The initial reaction of most business owners is: "this customer never even visited my business, or only visited once, how have they been harmed under the ADA?" Arizona district court judges have routinely ruled, coupled with other considerations, that a minimum threshold is necessary to survive a motion to dismiss. Indeed, there have been over 10 motions to dismiss filed in the current wave of ADA tester cases, all alleging lack of standing, yet none have been successful (one motion was granted, but afforded the plaintiff leave to correct her complaint).

To maintain an ADA claim, a disabled plaintiff must suffer an injury that is "concrete and particularized" and "actual or imminent." Concrete and particularized is established when the plaintiff personally encounters the barrier complained of or is deterred from visiting the public accommodation as a result of the barrier. Actual or imminent is established when the plaintiff is either currently deterred from patronizing a public accommodation due to the defendant's noncompliance or threatened with harm in the future because of existing or imminently threatened noncompliance. However, without an actual intent to return, a plaintiff has suffered neither an actual nor imminent injury, and thus has no standing. "Intent to return" is generally the element most susceptible to attack because a plaintiff's filing of multiple ADA lawsuits can undercut the credibility of his or her expressed intent to return. In analyzing the "intent to return" element, courts also consider the purpose for which the plaintiff initially visited the business; if there was only one visit, was it to enjoy the business's services, or was it for the purpose of filing a lawsuit?

Defense Strategies and Considerations

First, ensure that the plaintiff's allegations of ADA deficiencies are legitimate. To do this, have an ADA-savvy contractor or architect survey the premises. This is also the way to prevent future suits—a business's voluntary correction of an alleged barrier renders a prospective plaintiff's ADA claim moot. Also, remember that under the ADA, a business must only bring its premises into compliance when "readily achievable" to do so. The ADA defines readily achievable as easily accomplishable and able to be carried out without much difficulty or expense (relative to the size of the business). According to the ADA, "this is a flexible, case-by-case analysis, with the goal of ensuring that ADA requirements are not unduly burdensome, including to small businesses."

Second, consider serving written discovery and taking the plaintiff's deposition to assess the plaintiff's claimed intention to return to the business if retrofitted. Just because the complaint says the plaintiff intends to return doesn't mean this allegation shouldn't be explored. This is especially true when the plaintiff resides out of state, has filed numerous similar lawsuits, or has only visited the business on one occasion, if at all. Remember, the plaintiff's ADA lawsuits against other businesses increases the likelihood that the court will find that the plaintiff lacks standing.

Third, if the plaintiff's settlement demand is unreasonable, file an early offer of judgment under Rule 68, FRPC. If the plaintiff doesn't beat the offer at trial, he or she must pay costs (but not attorneys' fees) incurred after the offer was made. By forcing the plaintiff to have skin in the game, he or she may reconsider whether your case is the one worth fighting.

Fourth, be mindful of a potential investigation by the Arizona Attorney General. If there are verifiable ADA barriers, and it would be readily achievable to remove those barriers, do so. By statute in Arizona, the AG "shall investigate" alleged ADA violations, and if the investigation leads to the AG filing suit, the court "may" award monetary damages to aggrieved persons and fine the business $5,000 for a first violation and $10,000 for any subsequent violation.

Lastly, if scorched earth is your preference, consider filing a counterclaim against the plaintiff. This has been done in other jurisdictions based on theories of abuse of process (alleging the plaintiff's ulterior purpose for filing suit) and conspiracy to commit tortious acts. Unfortunately, it does not appear that any such counterclaims have been successful. The takeaway message is that although these tester cases are bothersome and feel like extortion, businesses are wise to take these cases seriously because there is no end in sight. New cases continue to be filed weekly, sometimes daily. Formulate a plan with your attorney and take affirmative steps to ensure your interests are protected.

Matt Anderson
Jaburg Wilk, PC
Jaburg Wilk