Drive by litigation in the hotel industry – An unintended result of the ADA - by Sherin and Lodgen LLP

December 15, 2017 - Front Section
Josh Bowman
Sherin and Lodgen

The Americans with Disabilities Act (ADA) is an important and necessary regulatory device that serves a critical legal and social purpose. So called “drive by litigation” has, however, wreaked havoc in the hotel industry and turned a well-intentioned and groundbreaking law into a tool for plaintiffs and law firms seeking quick and easy settlement money. Plaintiffs engage in “drive by litigation” when they file ADA lawsuits against businesses without actually patronizing, or attempting to patronize, the business. These plaintiffs, often recruited and sent by law firms as investigators, will travel to businesses with the sole purpose of looking for ADA violations. In many cases, plaintiffs do not even leave their cars or step foot in the target business. Because the ADA imposes many highly technical and difficult to implement rules, an inquisitive plaintiff can usually find a violation and, if not, violations are sometimes invented. Law firms representing these “professional plaintiffs” then generate standard form complaints, sometimes accompanied by a demand letter threatening high legal fees, certain victory over the business owner, and bad publicity. Business owners regularly pay out settlements before the case advances into discovery. Meanwhile, Plaintiffs and their attorneys have developed a cottage industry of filing lawsuits, exacting settlements, and collecting attorney’s fees.

The ADA was intended to promote equal access to businesses for individuals with disabilities. The law prohibits discrimination against disabled individuals in terms of access to goods, services, facilities, or places of public accommodations. Under the law, disabled individuals who have encountered architectural barriers to access can sue businesses for injunctive relief, requiring the business to fix the violation. To encourage disabled individuals to bring lawsuits, the ADA also provides for an award of reasonable attorney’s fees to a successful plaintiff. 

Congress also vested the Department of Justice with authority to develop accessibility standards for public accommodations. The DOJ issued 275-page ADA manual containing specifications for everything from parking spaces and ramps to drinking fountains, carpet thickness, and window height. Every doorway, every door handle, every surface, every light switch, outlet, and counter are all covered by the Americans with Disabilities Act. 

With these highly specific and technical regulations, and the possibility of having to pay the plaintiff’s attorney’s fees, ADA lawsuits are on the rise, and drive by litigation is rampant. The hotel industry is especially susceptible to ADA drive-by lawsuits. A plaintiff can easily pull into a hotel parking lot and check for violations in the hotel’s ramps, entrances, parking spaces, pool area, doorways, and valet circle. Rather than notifying the hotel that it is in violation of the ADA, or requesting that the hotel offer an alternative means of accessing its services, the plaintiff reports back to the law firm. Plaintiffs then file standard form complaints, sometimes dozens at a time, alleging the same violations. The result of these unending lawsuits is that lawyers, not the disabled, are the primary beneficiaries. 

Even more alarming, is the newest trend in drive by litigation: Google Lawsuits. Serial plaintiffs now use Google Maps to check for ADA violations within a hotel’s grounds. For example, the ADA requires hotels to install lifts in swimming pools to provide access to wheel-chair bound patrons. Swimming pool lifts are easily detectable by Google Maps. In these cases, plaintiffs allege ADA violations without even leaving their homes. One particularly aggressive plaintiff filed over 60 lawsuits in 57 days against hotels, alleging in each suit that the defendant’s failure to install a pool lift violated the ADA.

Although Courts have begun to recognize abuse of the ADA by serial litigants and their attorneys, the law does not give courts much leeway given the statute’s low pleading standard and provision for attorney’s fees. To state a claim under the ADA, a plaintiff need only establish three elements: that he or she is disabled within the meaning of the ADA, that the defendant owns, leases, or operates a public accommodation, and that the defendant discriminated against him or her by denying full and equal opportunity to the defendant’s services. As long as the plaintiff alleges a violation of the ADA, however minor, the business owner is responsible for the plaintiff’s legal fees.

In many cases, hotel owners attempt to repair the violation early in the lawsuit to render the case moot. But this strategy is insufficient. The ADA only requires hotel owners to repair structures in existence prior to January 25, 1993 when “removal [of the barrier] is readily achievable.” What constitutes a “readily achievable” repair, however, is highly uncertain and fact intensive. Indeed, 2012 DOJ Guidelines concerning accessibility requirements for swimming pools notes that “Readily achievable means that it is easily accomplishable without much difficulty or expense. This is a flexible, case-by-case analysis . . .” This standard does not provide much comfort to hotel defendants, and provides little, if any, disincentive to plaintiffs to file complaints in hopes of getting a quick settlement, given that a hotel’s ability to terminate the case is significantly limited by the  intensive nature of the standard.

Change, however, might be on the horizon, as Congress considers a bill – HR 620: ADA Education and Reform Act of 2017 – to amend the ADA. The bill would require the DOJ to consult with both property owners and disabled rights activists in issuing guidelines and educating the public on ADA accessibility. And, the bill requires plaintiffs to send demand letters to business owners that detail the specific circumstances under which the individual actually encountered the alleged barrier and was denied access to a service prior to filing suit. The demand letter must also explain whether or not the individual made a request to remediate the alleged issue. Business owners would then have 60 days to respond with a plan to remedy the violate, and 120 days to actually fix the violation. Only if the business owner fails to do so may the individual file suit. Representative Tim Poe of Texas, the bill’s sponsor, described the purpose of the bill “to ensure access to public accommodations for all citizens while curbing some of the abusive practices that have become common in recent years.” The bill was introduced on January 24, 2017, and on September 7, 2017, the subcommittee voted to issue a report to the full chamber recommending that the bill be considered further.

Until then, however, hotel owners must take every precaution to keep their facilities in compliance with the ADA, and reach out to counsel to ensure that as new guidelines are issued, appropriate updates are made. 

This month’s article was co-authored by three lawyers from the Boston law firm of Sherin and Lodgen LLP: 

Joshua Bowman, Charlotte Drew and Matthew Moschella.  

Bowman is the chair of the firm’s hospitality practice group, and a well-known hospitality attorney. 

Moschella and Drew are lawyers in the firm’s litigation department, who represent hotel owners in connection with ADA litigation.  

Sherin and Lodgen represents many of the region’s most active hospitality owners, operators and developers in a wide variety of legal matters, including ADA litigation. 



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