The Americans with Disabilities Act (ADA) became law in 1990, but it is newly urgent for businesses. Lawsuits filed under Title III, which requires businesses that are open to the public to be accessible to people with disabilities, have increased exponentially in recent years. According to one analysis, Title III lawsuits increased from 2,722 in 2013 to 7,663 in 2017. The number of individual plaintiffs, however, is much smaller. The world of ADA litigation includes repeat plaintiffs who sue many different businesses over alleged compliance issues. In one extreme instance, a group of plaintiffs (an individual and three organizations) had filed over 1,600 similar lawsuits in 2016 alone, see Arizona's motion to dismiss and motion for judgment on the pleadings. Lawsuits brought by repeat plaintiffs are highly controversial. While some critique them as opportunistic “drive-by litigation,” others view them as an essential form of disability activism, see Samuel R. Bagenstos, “The Perversity of Limited Civil Rights Remedies: The Case of 'Abusive' ADA Litigation,” 54 UCLA L. Rev. 1 (Oct. 2006).

In February of this year, the U.S. House of Representatives voted 225-192 to approve a bill addressing this wave of lawsuits being filed under the ADA. The Senate received the bill on Feb. 26, but has not yet acted to approve it. Even if the pending bill does pass both houses of Congress and is signed into law, all it requires is for potential plaintiffs to provide notice and an opportunity to cure alleged architectural barriers before filing suit. The lawsuits will therefore likely continue. Until the bill becomes the law of the land (and it may never), businesses accommodating the public would do well to consider their own compliance with the ADA; the threat it poses if they do not comply is real.

The ADA's goal of making facilities of public accommodation accessible to all is well known. However, businesses may be surprised to learn that the ADA can also require an unsuccessful defendant to pay the plaintiff's legal fees. Even for a business that quickly agrees to improve its accessibility, this can be an expensive process that could involve paying both its own and the plaintiff's legal fees. It is therefore crucial to be proactive about complying with the ADA, which requires businesses to take reasonable measures to achieve accessibility for disabled people. Businesses neglect this obligation at their peril.

As a result, planning to accommodate disabled people is a must. For commercial landlords and their counsel, ADA planning should begin with the lease. What kind of business will be at the location, and what challenges could it pose for disabled people? Restaurants (and particularly their restrooms) often get a lot of ADA compliance attention, but it is important to think broadly. A movie theater, for example, could have a narrow passageway that prevents disabled people from accessing their seating, or it may need to provide deaf people with a captioning device. Once you understand the specific challenges at the business, it is essential to consider whether the lease will make the landlord or the tenant responsible for ensuring that the premises is accessible.

A well-written lease is only the first step. Even if a lease provides that a tenant is responsible for making the business accessible, a landlord will still have to respond to claims of ADA violations. The issue goes beyond reviewing and approving plans for the buildout. ADA obligations are ongoing, and a wise landlord will stay informed about how its tenants address issues related to accessibility. For example, a restaurant tenant that uses certain types of furniture might make portions of the restaurant inaccessible to a person in a wheelchair. That could then open the door to an avoidable lawsuit. Landlords and tenants alike should take a proactive approach so that they can find problems—and work to fix them—before they read about the issue in a complaint filed in court.

Moreover, planning to address these ADA compliance issues can also have an insurance aspect. Has insurance counsel been retained? It is worth reviewing the possibility of eliminating exclusions that might impact coverage for an ADA claim (or at least defense costs) at the time of placement. If your business or property involves public accommodation, especially on a large scale, securing the most appropriate insurance coverage is therefore part of the best strategy for defense.

Planning and prevention is always the way to go, but if, despite your best efforts, your operation gets sued, there are ways to defend. Once you receive the summons and complaint, hiring competent counsel to advise you is obviously the next step. To prevail on an ADA claim, the plaintiff will have to prove three things, at a minimum: that the plaintiff is disabled; that the operation at issue is a facility of public accommodation; and that the plaintiff was denied full and fair treatment because of his disability.

If you believe you have taken reasonable measures for accessibility, it is important to understand whether the plaintiff has “standing,” or the legal right, to bring the lawsuit. Are the allegations real? Does the plaintiff actually want to patronize your business, or is he simply a tester partnering with an attorney? Answers to these and other, similar questions will help the court decide whether or not the suit can proceed.

In one case, a federal court in California held that a plaintiff could not sue a winery that was 104 miles from his home and that he visited just once in Molski v. Kahn Winery, 405 F. Supp. 2d 1160, 1164 (C.D.Cal. 2005). The court observed that the plaintiff has sued more than 500 businesses and had “engaged in a pattern of abusive litigation.” Despite the plaintiff's claims that he stopped at the winery's tasting room during a trip to visit family, the court determined that “these trips up the coast to 'visit his cousin' were merely drive-by efforts to build an inventory of potential defendants to be sued one year later.” Although every business must comply with its obligations under the ADA, not every potential plaintiff has the right to sue your business.

Having an architect or other expert schooled in ADA compliance issues is also essential. Are the measures being sought by the plaintiff reasonably achievable? Can the litigation be stayed while the parties consider their options? That will at lease minimize the legal expenses and focus the parties on working collaboratively (if at all possible) toward a sensible and fair result. Until Congress acts, though, those efforts will likely continue to happen only in the context of pending litigation.

Patrick P. Dinardo is a partner and co-director of the litigation department at Sullivan & Worcester. His practice focuses on litigation and bankruptcy, and the resolution of complex business issues.

Erika Todd is an associate in the firm's litigation department. Her practice includes complex commercial litigation and employment matters.