Publication

Have You Been Sued By An ADA Tester?  Here Is How To Fight Back

By Don Foster Esq.

A “tester” is a disabled person who travels around the country seeking out businesses that are open to the public and which do not comply with the American with Disabilities Act, 42 U.S.C. § 12181 et seq.  Their sole goal is to locate non-compliant businesses and sue them.  The remedy they seek is an order (or agreement) to retrofit the property, and attorney fees.  Some of these “testers” have filed hundreds of such lawsuits, sometimes thousands of miles away from where they reside.  The complaints invariably plead one visit and intent to return in the future to enjoy the goods or services offered by the defendant.

Much has been written about the standing these testers have to sue businesses whose goods and services they really never had any intention of using, either in the past or in the future. Public policy journals typically advocate in favor of the right of these serial plaintiffs to enforce the public purpose behind the ADA.  See, e.g., L. Lee,   Giving Disabled Testers Access To Federal Courts: Why Standing Doctrine Is Not The Right Solution To Abusive ADA Litigation, 19:2 Virginia Journal Of Social Policy & the Law (Spring 2012); A. Brown, How Courts Are Undermining The American With Disabilities Act’s Private Enforcement Provision, Rutgers Journal Of Law and Public Policy Region In Review Blog (September 13, 2012).  However, the Act itself and recent case law ruling on motions to dismiss these test cases afford businesses under attack some defenses.  So, before a business knuckles under to the threat of having to pay not only the cost of a rebuild, but two sets of attorney fees unsuccessfully defending one of these claims, it should analyze the facts specific to its situation, including the cost of construction relative to the value of the business and whether the plaintiff is really likely to return to the business.  This article summarizes some of the considerations for a business and its attorneys after it has been sued and before it agrees to settle the claim.

Protection For Pre-ADA Small Businesses

First, the ADA went into effect on January 26, 1992.  In recognition of the fact that many small businesses cannot afford to make significant physical changes to their facility, the ADA requirement for businesses in existence before 1993 are less strict than those for facilities built after 1993, or modified after early 1992.  Such businesses are only required to remove physical “barriers” that are “readily achievable” which, in the words of the U.S. Department of Justice’s Civil Rights Division, means “easily accomplished without much difficulty or expense.”  What is “readily achievable” is defined by the size and resource of the business.  So if you have been sued by a tester, the first thing to do is have an ADA-savvy architect or engineer tell you if removing the barriers challenged by the tester is in fact “readily achievable.”  The U.S. Small Business Administration’s Office of Entrepreneurial Development together with the Department of Justice have published an “ADA Guide for Small Business” to which any small business considering removing architectural barriers in order to comply with the ADA, whether voluntarily or under threat of a lawsuit, should refer.  It can be accessed at http://www.ada.gov/smbusgd.pdf.

However, it probably will come as no surprise that the tester and his attorney probably will have an entirely different view of what is “readily achievable” than does the business owner.  Rather than litigate the issue, risk that a judge will agree with the plaintiff, and have to pay two sets of attorney fees, most defendants have settled quickly, have agreed on a scope of remediation and have paid attorney fees well into five figures.  Those that have fought back, however, have created an ever-refining body of case law that should be researched before caving into the demands of the tester and his attorney.  The focus of the inquiry is on the standing of the tester to claim discrimination under the Act, which in turn depends upon whether or not in fact there is a reasonable likelihood of his returning to the property.  A secondary issue is whether the tester’s stated intent to return is simply in order to once again test for compliance, or whether it is to use the goods or services offered by the targeted business.  As we will see, the courts are divided on this latter element.

Tester Standing

In order to have standing to assert any claim in federal court, a plaintiff must have constitutional standing.  That means that a plaintiff must: a) have suffered a concrete, particularized injury that is not conjectural or hypothetical; b) that has been caused by the challenged action of the defendant; and c) that is “likely” and not speculative; meaning that a decision in the plaintiff’s favor will, in fact, redress the alleged harm.  Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).

The only remedy available under the ADA is injunctive relief, one of the requirements of which is that a plaintiff show a “real and immediate” threat of injury.  City of Los Angeles v. Lyons, 461 U.S. 95, 104 (1983).  Past exposure to illegal conduct does not present a present case or controversy regarding injunctive relief.  Brown v. Fauver, 819 F.2d 395, 400 (3d Cir. 1987).  Plans “some day” to become exposed to harm has been held not to be the real and immediate threat that establishes standing.  Id.  The Third Circuit Court of Appeals has held that these principles apply to claims under Title III of the ADA.  Id.; Doe v. Nat’l Bd. Of Medical Examiners, 199 F.3d 146, 153 (3d Cir. 1999).

A four-part test has been applied by district courts to determine whether a plaintiff can meet the test of standing to bring an ADA claim:  1) proximity to the defendant’s property; 2) past patronage; 3) definitiveness of plaintiff’s plan to return; and 4) frequency of nearby travel.  See, e.g., Disabled Patrons of America v. City of Trenton, No. 073165, 2008 WL 4416459 (D.N.J. Sept. 24, 2008); and Dempsey v. Piston Beef N Beer, LLC., No. 08-5454, 2009 WL 3584597 (D.N.J. Oct. 26, 2009); see also Kramer v. Midamco, 656 F.Supp.2d 740, 748 (N.D. Ohio 2009).

It has been held that a distance of more than 100 miles renders it unlikely that a plaintiff will return to the property and thereby suffer future harm.  Trenton at *4; Jones v. Sears, Robuck & Co., No. 05-0535, 2006 WL 2437905, at *3 (E.D.Cal. , Nov. 29, 2006); Delil v. El Torito Restaurants, Inc., No. 94-3900, 1997 WL 714866, at *4 (N.D. Cal. June 24, 1997).  This presumption is certainly rebuttable, but absent proof from the plaintiff of a continuing connection to the location, such as familial or business ties, courts have dismissed tester complaints for failing to meet the third prong of the test.  Id. at*6;  Access 4 All, Inc. v. Wintergreen Commercial P’ship, Ltd., No. 05-1307, 2005 WL 2989307 (N.D. Tex., Nov. 7, 2005).

In the same vein, it has been held that only one visit to an establishment creates a further presumption against future injury without some real connection to the establishment.  Id., at *5; see also, Molski v. Kahn Winery, 405 F. Supp.2d 1160, 1164 (C.D. Cal. 2005).

The Second Circuit recently affirmed the dismissal of a tester complaint under Fed. R. Civ. P. 12(b)(1) for lack of standing under this four-prong test.  See, Harty v. Greenwich Hospitality Group, LLC d/b/a Hampton Inn & Suites, 536  Fed. Appx. 154 (Mem),  2013 WL 5779641 (2nd Cir., Oct. 28, 2013).  The Court held that a plaintiff who lives thousands of miles away from a location, has only visited it once and who has no specific plans to return lacked standing to file an ADA claim.  Id.

A theme running through many of the decisions dismissing tester cases for lack of standing has been the courts’ assumption, or overt finding of fact, that the tester’s only motive for returning to a facility was to test for compliance, not use the goods and services offered by the facility.  At least one court has held that a simple averment of an intent to return, without more, is insufficient to confer standing.  See, Norkunas v. Park Road Shopping Center, Inc., 777 F.Supp.2d 998, 1005 (W.D.N.C. 2011).

The Eleventh Circuit, however, has held in a split 2-1 panel decision that the plaintiff’s motive behind returning to facility is not relevant to whether or not he has standing.  As long as the plaintiff can establish as a fact that there is a reasonable likelihood of returning to a facility then he has standing to pursue a Title III ADA Claim.  Houston v. Marod Supermarkets, Inc., 733 F.3d 1323 (11th Cir. 2013).

Conclusion

It is beyond the scope of this article to analyze the many recent decisions either dismissing ADA tester complaints, or denying motions to dismiss.  Many of the decisions have turned on where the case is procedurally, which can have an effect on how much credence the district court gives to allegations in the complaint.  In other decisions, the district courts have held evidentiary hearings or have considered competing affidavits in order to make a factual finding concerning the tester’s intent to return.  It also remains to be seen whether the approach of the divided 11th Circuit panel in the Marod Supermarkets case will be adopted by district courts in other Circuits.  If not, then it may be that an additional prong to the standing test will be added, that being the tester’s motive for returning.  The purpose of this posting is to alert businesses and their attorneys that there are strategies available to resist an ADA tester attack, as well as strategies to minimize the cost of having to retrofit the targeted facility in order to remove architectural barriers.

Don-FosterIf you have questions or would like to know more please contact Don Foster, at: dfoster@offitkurman.com | 267.338.1357. Don Foster serves as the Chair of Offit Kurman’s Business Litigation Practice Group. He is a seasoned commercial litigator with a proven track record in the courtroom, which includes trying cases to verdict in federal and state courts throughout the country. He is regularly asked to prosecute or defend to verdict cases involving significant financial risk to the client. His trial and alternative dispute resolution experience is varied and includes a large variety of different matters involving title insurance, agent defalcations, intellectual property, health care, franchising, corporate governance issues, and law firm partnership disputes.Steve provides strategic counseling to clients in need of estate administration, charitable giving and business continuity planning while minimizing estate, gift, and generation-skipping transfer tax exposure. He offers legal guidance to clients on asset protection and the proper disposition of assets in accordance with the client’s objectives, while employing tax planning techniques such as the use of irrevocable trusts, life insurance planning, lifetime gifts and charitable trust. He is also experienced with drafting documents for business planning, the incorporation and application for exemption for Private Foundations and the administration of decedents’ estates. You can also connect with Offit Kurman via FacebookTwitterGoogle+YouTube, and LinkedIn.