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Title III of the Americans with Disabilities Act (“ADA”, 42 U.S.C. §12181 et seq.) indisputably serves a laudable purpose. It prohibits discrimination on the basis of disability by places of public accommodation – which includes any public establishment such as restaurants, hotels, retail shops, etc. See §12182.

Congress intended the Act to be enforced by, among other means, private right of action. See §12188(a). Private plaintiffs who personally encounter accessibility barriers are therefore permitted to sue the public accommodation for injunctive relief requiring it to remove the barrier. See §12188(a); see also 42 U.S.C. §2000a-3. The ADA also permits an award of prevailing party attorneys’ fees. See 42 U.S.C. §12205. Notably, damages are not available to Title III plaintiffs.

Amidst the legitimate Title III claims, however, are those which are filed for fraudulent, ulterior motives. There is an unfortunate subset of illegitimate claims that are pursued solely for attorneys’ fees, which are often shared between the attorney and the plaintiff in contravention of bar rules. See, e.g., https://www.adatitleiii.com/2019/08/florida-judge-sanctions-serial-ada-plaintiff-alexander-johnson-and-attorney-scott-dinin/. These claims are typically concocted by unscrupulous lawyers who target establishments or websites with cases filed by serial plaintiffs in name only, having never actually visited the subject of the lawsuit.

Nevertheless, proving an ongoing fraudulent enterprise between ADA plaintiffs and their counsel will rarely be possible. Many defendants opt to quickly settle these cases for a sum less than it would cost to expose the litigation as abusive. To be clear, settlement should absolutely be pursued whenever it is the cheapest option. There are, however, some cases in which a successful motion to dismiss may cost less than the plaintiff’s settlement demand. In those cases, defense counsel should strive to defeat such claims on the merits.

The serial nature of many Title III claims, frequently based upon boilerplate allegations copied and pasted from template pleadings shared amongst plaintiffs’ attorneys, creates various defensive options. These superficial, assembly-line claims commonly suffer from a misreading of the controlling statutes. The diligent defendant may have an opportunity to quickly end the litigation and, in some cases, obtain a fee award against the plaintiff to the extent a defective claim is not voluntarily dismissed. Please note that the following discussion will primarily rely upon prevailing Title III law from within the U.S. Eleventh Circuit, and therefore may not be applicable in other jurisdictions.

I. Physical architectural barriers

Let’s start with those cases in which the plaintiffs are alleging architectural barriers, such as insufficient clearance under tables, a lack of wheelchair-accessible ramps, etc. Let’s further assume that the alleged barriers do in fact exist, in which case the plaintiff will likely obtain the injunctive relief sought along with a prevailing party fee award if the case goes to trial. This means the defendant will be liable for the expense of complying with the injunction, plus the fees and costs incurred by the plaintiff (in addition to, of course, all of its own fees and costs incurred throughout the litigation). This is a worst-case scenario for the public accommodation, but it is by no means inevitable.

A better strategy is to simply fix the barrier voluntarily, without waiting for an adverse judgment mandating the remediation. It is in the accommodation’s best interest to quickly eliminate it lest it find itself the target of further ADA litigation. Just like there is no requirement for the plaintiff to give pre-suit notice, there is absolutely no impediment under the Act to a defendant voluntarily fixing the barrier after litigation has been filed. However, some plaintiffs will attempt to circumvent a self-help defense by shifting the target of the litigation as it proceeds. For example, the complaint may identify particular barriers in a qualified manner (such as “including, but not limited to” and the like) so as to permit the plaintiff to raise new barriers if those named in the complaint are fixed voluntarily. The reasons why this type of “moving target” offense is legally defective, and therefore unsustainable, are beyond the scope of this topic. Suffice it to say that the diligent defendant will strive to limit the plaintiff to pursuing only those barriers expressly identified in the complaint.

It inarguably benefits the defendant to voluntarily remediate, because there remains nothing for the court to enjoin once the barrier(s) sued upon have been removed. In other words, the case becomes moot. See Kennedy v. Nick Corcokius Enterprises, Inc., 2015 WL 7253049 at 2-3 (S.D.Fla. Nov. 17, 2015); Access 4 All, Inc. v. Bamco VI, Inc., 2012 WL 33163 at 6 (S.D.Fla. Jan. 6, 2012) (acknowledging that “federal courts have found ADA claims moot” based upon the defendant’s voluntary implementation of structural modifications); National Alliance for Accessibility, Inc. v. Walgreen Co., 2011 WL 5975809 at 3 (M.D.Fla. Nov. 28, 2011) (acknowledging that federal courts have dismissed ADA claims as moot when the alleged architectural violations have been remedied after the complaint was filed “[i]n a number of cases”); Kallen v. J.R. Eight, Inc., 775 F.Supp.2d 1374, 1379 (S.D.Fla.2011) (where parties agreed that nine of the architectural violations alleged in the complaint were voluntarily remediated by the defendant, “the Court finds that those nine claims are rendered moot and subject to dismissal for lack of jurisdiction.”)

Once the case is rendered moot, the plaintiff loses statutory entitlement to attorneys’ fees and costs. Id. at 1381 (“A Plaintiff who initiates a lawsuit that causes the Defendant to voluntarily remedy ADA violations is not a prevailing party for purposes of attorneys’ fees, and is not entitled to collect costs and fees.”) The diligent defendant avoids having to pay the plaintiff any fees or costs, while minimizing its own, by voluntarily fixing the barrier and seeking a dismissal as early as possible.

II. Intangible barriers

Title III plaintiffs have increasingly targeted intangible accessibility barriers in recent years. As distinguished from physical architectural features which impede the use of a facility, intangible barriers are those which prevent a disabled person from exercising an informational advantage offered by the public accommodation. They can consist of websites that are incompatible with screen reader software, retail gift cards without braille lettering, or even gas pump video content which lacks closed captioning.

These cases rest upon an inaccurate presumption: Title III permits the plaintiff to dictate that a particular “auxiliary aid and service” must be offered by the public accommodation. For example, cases targeting websites will exclusively focus upon allegations that the site lacks compatibility with screen reader software (text to speech software used by the visually impaired to read aloud text displayed on the screen) and is therefore not compliant with the ADA.

However, the relevant Title III provisions along with federal regulations implementing them clearly provide that the public accommodation may choose for itself any appropriate means to effectively communicate with the disabled. For example, 42 U.S.C. §12182(b)(2)(A)(iii) provides that “discrimination” under Title III includes:

“a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden …” (emphasis added)

Unless the place of public accommodation can establish that it would result in a fundamental alteration or an undue burden, it is expressly required to offer “auxiliary aids and services” that will ensure equal access by disabled persons. Importantly, §12182(b)(2)(A)(iii) specifies that a public accommodation discriminates only to the extent it fails to offer any auxiliary aids and services whatsoever, i.e., “because of the absence of auxiliary aids and services”. No particular auxiliary aids and services are mandated, nor does the statute impose liability merely because a public accommodation neglects to ensure that its website is compatible with screen reader software.

Various examples of “auxiliary aids and services” are listed at 28 C.F.R. §36.303(b):
“Examples. The term ‘auxiliary aids and services’ includes-

(2) Qualified readers; taped texts; audio recordings; Brailled materials and displays; screen reader software; magnification software; optical readers; secondary auditory programs (SAP); large print materials; accessible electronic and information technology; or other effective methods of making visually delivered materials available to individuals who are blind or have low vision …” (emphasis added)

Notably, screen reader software is merely one example of an auxiliary aid and service; places of public accommodation are otherwise permitted to rely upon “other effective methods” of delivering visual materials to the visually impaired. Subsequent portions of the cited regulation emphasize this. See 28 C.F.R. §36.303(c)(1)(ii):

“(1) A public accommodation shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities. …
(ii) The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place. A public accommodation should consult with individuals with disabilities whenever possible to determine what type of auxiliary aid is needed to ensure effective communication, but the ultimate decision as to what measures to take rests with the public accommodation, provided that the method chosen results in effective communication. In order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.” (emphasis added)

The federal regulations implementing Title III therefore emphasize that the place of public accommodation ultimately has sole and absolute discretion to determine which “auxiliary aids and services” it must offer in order to ensure effective communication with disabled persons. See, e.g., Price v. City of Ocala, Florida, 375 F.Supp.3d 1264, 1271 (M.D.Fla. 2019) (“[A]n agency with an inaccessible Web site may also meet its legal obligations by providing an alternative accessible way for citizens to use the programs or services, such as a staffed telephone information line”, citing 28 C.F.R. §Pt. 35, App.A, emphasis added); Silva v. Baptist Health South Florida, Inc., 856 F.3d 824, 835-36 (11th Cir.2017) (“If effective communication under the circumstances is achievable with something less than an on-site interpreter, then the hospital is well within its ADA and RA obligations to rely on other alternatives. Indeed, the implementing regulations clarify that ‘the ultimate decision as to what measures to take rests with’ the hospital …”, emphasis added); Petrano v. Nationwide Mut. Fire Ins. Co., 2013 WL 1325045 at 8 (N.D.Fla. Jan. 24, 2013):

“Under the plain language of the regulations, then, no single form of auxiliary aid and no single type of communication is mandated. Rather, the code directs that public accommodations provide appropriate aids that will ensure effective communication. Notably, the code specifically provides that the ‘ultimate decision as to what measures to take rests with the public accommodation.’ … See Burkhart v. Washington Metropolitan Area Transit Auth., 112 F.3d 1207, 1213 (D.C.Cir.1997) (noting that ‘[n]othing in the ADA itself or its implementing regulations dictates that a disabled person must be provided with the type of auxiliary aid or service he requests.’)” (emphasis added)

After reviewing the foregoing authority, it becomes clear that the increasingly prevalent Title III website cases are completely misguided. Plaintiffs have no legal basis to dictate that a public accommodation’s website must be compatible with screen reader software. If, for example, the establishment provides a phone number that can be used by the visually impaired to speak with an employee who will read any portions of the establishment’s website to the extent such portions are not compatible with screen reader software, the accommodation is in full compliance with the ADA. All that is required is effective communication; how that is achieved remains up to the accommodation.

I will appreciate any feedback regarding the foregoing analysis, particularly from those of you who practice in this area on the plaintiffs’ side. Please feel free to point out anything I may have overlooked. Thanks for reading!