ADA Defense Lawyers Prolong Litigation and Postpone Access:  A Case Study of Litigation Abuse

[Originally published on the blog of the Civil Rights Education and Enforcement Center on February 27, 2018.]

Title III of the Americans with Disabilities Act (ADA) prohibits disability discrimination by private businesses.  Lawyers who defend noncompliant businesses argue that their opposing counsel — lawyers who represent people with disabilities seeking to enforce their rights — engage in litigation abuse.  They are lobbying for passage of H.R. 620, a bill that would add the requirement of a specifically-worded demand letter and four-month waiting period before a disabled person could enforce their rights.

This case study of ADA defense litigation abuse suggests that ADA defense counsel are already guilty of prolonging litigation, postponing access, and ultimately enriching themselves at the expense of both the businesses they represent and the people with disabilities who continue to be denied access 28 years after the ADA was passed.

H.R. 620’s requirement of a demand letter will remove any incentive for voluntary compliance and will add a new round of motions for ADA defense attorneys to file — challenging the wording, content, and specificity of the demand letter — on top of the already unconscionable litigation delay that is their standard practice.

To demonstrate the opportunities for delay in which ADA defense counsel typically engage, we looked at a case that a group of retail trade associations held up as a typical Title III case.  In a recent amicus brief to the Third Circuit, lawyers for the National Association of Convenience Stores, the National Grocers Association, and the Food Marketing Institute singled out the case of Heinzl v. Cracker Barrel Old Country Store, Inc., No. 14-cv-1455 (W.D. Pa. May 12, 2017) for their anti-ADA invective.

We took a closer look at the Cracker Barrel case and discovered that it presented a fairly typical example of ADA defense lawyer abuse.  The case alleged that a chain of fast food restaurants had noncompliant parking lots.  Instead of assessing and remedying these violations, Cracker Barrel’s attorneys — including several known for their serial defense of hundreds of ADA lawsuits and for proactively work against enforcement of Title III — prolonged the litigation for two and a half years with multiple, meritless motions and obstruction.

Cracker Barrel’s seven lawyers took the following actions in litigation, all of which were unsuccessful.  These lawyers’ abuse of the system is perhaps best illustrated by the fact that Cracker Barrel admitted, 14 months into the case, that “the subject properties contained barriers to access that were in need of remediation,”[1] yet continued to litigate for another year.

During the course of the litigation, Cracker Barrel and its attorneys:

  1. moved unsuccessfully to dismiss the case, ECF 10, 14, 15;[2]
  2. objected unsuccessfully to the magistrate’s ruling denying their motion to dismiss, ECF 16, 19, 23, 35;
  3. moved unsuccessfully for a protective order to prevent site visits by the plaintiff, ECF 20, 24, 26, 36;
  4. moved unsuccessfully for a protective order to limit the scope of the plaintiff’s deposition of defendant’s most knowledgeable representative, ECF 30, 37;
  5. refused to engage in class-wide discovery, requiring plaintiffs to file a successful motion to compel, ECF 27, 29, 36;
  6. moved unsuccessfully to stay the litigation, ECF 32, 37;
  7. refused to comply with the order granting the plaintiff’s motion to compel class-wide discovery, see ECF 41-2, requiring the plaintiff to move for sanctions, ECF 41, 43, 44; while the court did not impose sanctions, it imposed a deadline by which Cracker Barrel would have to produce class-wide discovery, ECF 47;
  8. moved unsuccessfully to compel discovery from the plaintiff, ECF 55, 60, 62;
  9. moved prematurely — and ultimately unsuccessfully — for summary judgment, ECF 64, 100, 105, 106, 113, in response to which the plaintiff moved successfully for additional discovery, ECF 74, 82;
  10. moved unsuccessfully to stay all proceedings pending ruling on its summary judgment motion, ECF 71, 78, 81, 82;
  11. unsuccessfully objected to the magistrate’s recommendation to deny its summary judgment motion, ECF 116, 126;[3]
  12. withheld ADA surveys of challenged facilities requiring plaintiff to file a successful motion to compel, ECF 76, 85, 87, 93;[4]
  13. moved unsuccessfully for a third protective order, ECF 91, 92, 96;
  14. unsuccessfully opposed the plaintiff’s motion for class certification, ECF 103, 108, 110, 113;
  15. unsuccessfully objected to the magistrate’s recommendation to grant the motion for class certification, ECF 116, 119, 123, 126;[5]
  16. unsuccessfully petitioned the Third Circuit Court of Appeals pursuant to Rule 23(f) to challenge class certification; and
  17. unsuccessfully moved — for a third time — to stay proceedings pending resolution of its Rule 23(f) petition, ECF 131, 134;
  18. unsuccessfully objected to the magistrate’s recommendation to deny the stay, ECF 135, 136, 137.

The case was filed in October, 2014, demanding that Cracker Barrel bring its parking lots into compliance with the ADA.  ECF 1.  In May, 2017, after all of the motions and maneuvers listed above, Cracker Barrel agreed to precisely this relief:  that it would survey it stores and bring the parking lots into compliance with the ADA.  ECF 163-1. In the meantime, people with mobility disabilities went another two and a half years without accessible parking, and Cracker Barrel’s lawyers billed their client for the time spent drafting and filing 21 separate briefs in pursuit of this campaign of delay. 

H.R. 620 will add yet another layer of process — another hoop to jump through — before people with disabilities can have the access guaranteed them when the ADA was passed in 1990.  It will also add to the list above another motion that ADA defense counsel can be paid to file.

The above Case Study is available in MS Word here.

The above Case Study is available in PDF here.


[1] See Heinzl v. Cracker Barrel Old Country Stores, Inc., No. 2:14-cv-1455, 2016 WL 2347367, at *11 (W.D. Pa. Jan. 27, 2016).

[2]  The numbers following each item refer to the docket numbers in the PACER Electronic Case Filing system,  All substantive filings related to each item are listed, including motions and orders.

[3] Heinzl v. Cracker Barrel Old Country Store, Inc., No. 2:14-CV-1455, 2016 WL 1761963 (W.D. Pa. Apr. 29, 2016).

[4]  Heinzl v. Cracker Barrel Old Country Store, Inc., No. 2:14-CV-1455, 2015 WL 6604015 (W.D. Pa. Oct. 29, 2015).

[5]  Heinzl, 2016 WL 1761963.

Acheson Hotels v. Laufer: Revenge of the Data Nerds

Fox & Robertson along with a dream team of drafting partners filed an amicus brief today in the case of Acheson Hotels v. Laufer, currently pending in the Supreme Court. The case addresses the issue of “tester standing,” that is, whether people protected by civil rights laws have standing to sue when they intentionally investigate compliance and encounter discrimination.

Because tester litigation has been responsible for calling out and challenging widespread disability discrimination, businesses hate it. The amicus briefs they filed were full of hair-on-fire numbers — of pending ADA lawsuits — that they characterize as a “staggering,” “unrelenting tide” that is “clog[ging] federal court dockets.” Chamber of Commerce Br. 7, 11; Retail Litig. Ctr. Br. 4, 11, 20, 22. One business brief asserted that tester standing “threat[ened] . . . the cohesiveness of our union.” Ctr. for Constitutional Responsibility Br. 1. Drama much?

Of course numbers are catnip to the data nerds here at Fox & Robertson World Headquarters, so we decided to take a look at the actual numbers of ADA cases filed in federal court — based on data gathered by the United States Courts on its website — and see how they looked in context. Here’s a chart comparing the “ADA-Other” category — roughly speaking, non-employment ADA cases, including the Title III cases that cause flaming hair on the business side — with six other common types of cases. Note the bright red ADA-Other line at the bottom.

Image:  a line graph titled “Case Filings by Type (Table C-2),” with the years 2008 to 2022 on the x axis and numbers 0 to 300,000 on the y axis. Seven colored lines cross the graph horizontally, each representing a type of case. The top line is a jagged line representing tort cases (varying between approximately 50,000 and 135,000). The line representing the category "ADA - Other" is in red.  It starts and ends at the bottom of the seven lines, intermingling with them in 2020.  ADA-Other cases vary from approximately 1,700 to approximately 12,000.  Other types of cases are as follows:  Contract cases, in green, vary from approximately 23,000 to 35,000. Labor law cases, in light blue, vary from approximately 13,000 to 19,000. Other civil rights laws, in dark green, vary from approximately 11,000 to 16,000.  Employment cases, in purple, vary from approximately 11,000 to 15,000.  Intellectual property, in blue, vary from approximately 8,000 to 14,000.

See? Not so bad after all! If business put half the effort into compliance that they put into whining, the world would be pretty damn accessible by now.

Be sure to check out our amicus brief with other fun facts and incisive arguments from the dream team: free agent disability rights rockstar Karla Gilbride, Michelle Uzeta at Disability Rights Education and Defense Fund, Tom Zito at Disability Rights Advocates, Justin Ormand at Allen & Overy and yours truly here at the World HQ.

F&R, DREDF submit amicus brief in support of proactive ADA enforcement.

Fox & Robertson, along with Michelle Uzeta of the Disability Rights Education and Defense Fund (“DREDF”) drafted an amicus — or “friend of the court” — brief to the Ninth Circuit supporting the time-honored and effective civil rights enforcement technique called “testing.” The amici filing the brief were DREDF, the Civil Rights Education and Enforcement Center (“CREEC”) as well as four disabled women who both need accessible businesses and facilities and have served as testers: Corbett O’Toole, Julie Reiskin, Ann Cupolo-Freeman, and Ruthee Goldkorn.

The Ninth Circuit recently issued a decision in the case of Langer v. Kiser, 57 F. 4th 1085 (9th Cir. 2023), strongly supporting civil rights testing in the context of Title III of the Americans with Disabilities Act, which prohibits disability discrimination by places of public accommodation. In response, the defendant business — and several supporting businesses and trade associations as amici — are petitioning the Ninth Circuit to rehear the case. Our brief asks the court to deny that petition.

We were inspired to write by the truly astonishing level of invective and baloney in the petition and amicus briefs urging rehearing. Title III testing involves people with disabilities intentionally putting themselves in a situation to experience, observe, and challenge discrimination. Given the vast number of businesses and facilities governed by Title III, testing is essential to full compliance, so people with disabilities can go about their days integrated and included in our society.

In this case, the plaintiff, Chris Langer, is a wheelchair-user who attempted to patronize a lobster shop in San Diego, but was unable to park due to the lack of accessible spaces. Mr. Langer sued the owners of the shop in 2018 and — rather than applying a bit of paint to asphalt to bring their parking lot into compliance — the owners fought back, challenging Mr. Langer’s standing to sue, that is, his right to be in court in the first place. They did not claim that their parking lot was accessible or vow to correct their violations; they just wanted to take away Mr. Langer’s right to challenge those violations and, along with it, both the rights of other plaintiffs to challenge other Title III violations and the rights of people with disabilities in general to use and enjoy the accessible facilities that result from these lawsuits.

The Ninth Circuit’s decision — almost precisely five years after the case was filed — strongly upheld Mr. Langer’s standing as both a patron and a tester, holding that “a plaintiff’s motive for going to a place of public accommodation is irrelevant to standing.” Langer, 57 F.4th at 1084.

In response to this clear and well-supported decision, the defendants asked the Ninth Circuit to rehear the case, and gathered four sets of amici to support them. These briefs were an eyebrow-raising collection of misconstruction and mud-slinging. Lawyers who represent disabled plaintiffs in Title III cases are “unscrupulous,” “opportunistic” and “predatory,” engaging in a “transfer of wealth.” Curiously, they call Title III litigation “meritless” and “baseless” without any argument or evidence to suggest that either the Kisers’ premises or the facilities in the cases they rely on are actually in compliance — 30 years after the deadline for compliance.

So much vitriol – so little substance!

Our amicus brief pushed back hard — not with the counter-invective that hilariously populated the authors’ text threads, but with fact and law. From our brief:

  • Congress chose to make private enforcement “the primary method of obtaining compliance with the [ADA].” Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1039-40 (9th Cir. 2008) (quoting Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 209 (1972)).
  • Based on barriers to the courthouse, “the ADA remains a chronically under-enforced statute.”
  • The “ADA regulates more than 600,000 businesses, [and] 5 million places of public accommodation.”
  • Testers have been widely accepted as enforcers of civil rights starting with Black people intentionally riding a segregated bus or using a whites-only waiting room. Evers v. Dwyer, 358 U.S. 202, 204 (1958); Pierson v. Ray, 386 U.S. 547, 558 (1967). 
  • People with disabilities have been granted standing to challenge architectural barriers in decisions around the country — and previously in the Ninth Circuit. Suárez-Torres v. Panaderia Y Reposteria España, Inc., 988 F.3d 542, 551 (1st Cir. 2021); Mosley v. Kohl’s Dep’t Stores, Inc., 942 F.3d 752, 758 (6th Cir. 2019); Civil Rights Education and Enforcement Center v. Hospitality Properties Trust, 867 F.3d 1093 (9th Cir. 2017); Nanni v. Aberdeen Marketplace, Inc., 878 F.3d 447, 457 (4th Cir. 2017); Colorado Cross Disability Coal. v. Abercrombie & Fitch Co., 765 F.3d 1205, 1211 (10th Cir. 2014); Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1332 (11th Cir. 2013); Harty v. Simon Prop. Grp., L.P., 428 F. App’x 69, 71 (2d Cir. 2011.)

We explained the value of testing in terms of the everyday experience of the amici:

It is the experience of the Individual Amici that illegal barriers are a routine impediment to their professional and personal lives. By the time a wheelchair-user arrives at a public accommodation, hoping to enjoy its goods, services, facilities, privileges, advantages, and accommodations, it’s too late for a lawsuit to be much use. You roll up to a place that should have been made accessible some time in the past 30 years only to discover that you can’t park, or you can’t get in the door, or you can’t use the restroom, or – in the case of the Individual Amici in the CREEC case – you can’t get from the airport to your hotel because the hotel’s van is inaccessible. The fact that you just achieved an injury-in-fact and an admit-one ticket to federal court does not let you park, or get in the door, or use the restroom, or get to your hotel.

Testers help solve this problem. Wheelchair-users who are intentional about investigating and challenging barriers can help move our society toward a time when they and others can go about their daily lives expecting and finding access to a wide range of facilities. . .

Throughout its decision, the Ninth Circuit cited to and relied on the CREEC case which was brought by (as the name suggests) CREEC, as well as the individual amici Corbett O’Toole, Julie Reiskin, Ann Cupolo-Freeman, and Ruthee Goldkorn. Because of their crucial role in the case on which the Ninth Circuit relied, these four women, along with CREEC and DREDF, were the amici asking the Court to turn away from the business-side invective and uphold an important tool for civil rights enforcement.

Deaf and Hard of Hearing People in Colorado Prisons Will Get Interpreters, Other Effective Communication and Accommodations

Disability Law Colorado Settles Lawsuit Against Colorado Department of Corrections

Disability Law Colorado (DLC) and the Colorado Department of Corrections (CDOC) have reached a settlement in a lawsuit DLC brought on behalf of Deaf and hard of hearing people incarcerated in CDOC’s custody.  DLC is represented by student attorneys and their professors at the Civil Rights Clinic (CRC) at the University of Denver Sturm College of Law, as well as attorneys from the Civil Rights Education and Enforcement Center (CREEC) and the Denver law firm of Fox & Robertson.

The lawsuit alleged that CDOC was in violation of the Americans with Disabilities Act (ADA) by failing to provide sign language interpreters for medical appointments, classes, and other significant interactions; failing to provide equal access to notifications and alarms; and failing to provide and maintain hearing aids.

In the settlement, CDOC commits to ensure that Deaf incarcerated people have access to sign language interpreters for key interactions such as intake and orientation; medical appointments; educational, vocational, and religious programs; and preparation for parole and release. CDOC will provide captioned telephones for hard of hearing incarcerated people, and continue to provide – per an earlier settlement with CREEC – videophones for those who are Deaf. CDOC will also ensure that hard of hearing incarcerated people are evaluated by an audiologist and provided hearing aids if necessary; those with hearing aids will receive prompt repairs and replacement batteries. 

The settlement requires CDOC to provide text-based notifications for incarcerated people who cannot hear announcements over the public address system, and to provide a visual or tactile alarm system to ensure that Deaf and hard of hearing incarcerated people are not left behind in emergencies.  

The lawsuit was the result of a two-year investigation by student attorneys at the CRC, who reviewed thousands of pages of documents and conducted hundreds of interviews. The investigation revealed systemic discrimination against Deaf and hard of hearing people and led to the filing of the federal court complaint in March of 2021.

Later that year, the parties began to discuss settlement, culminating in the agreement announced today.

“This settlement will finally ensure that Deaf and hard of hearing people are treated equally in Colorado’s prisons – that, like others, they can understand and communicate with medical personnel, succeed in educational and vocational programs, be safe in emergencies, and prepare for parole and release,” said Carrie Griffin Basas, DLC’s Executive Director. “We commend the CDOC for working with us improve the conditions for Deaf and hard of hearing incarcerated people.”

“For years, Deaf and hard of hearing people incarcerated by CDOC fought for their rights. We are grateful for their tenacity and courage. This settlement would not have been possible without their hard work and that of the multiple generations of Civil Rights Clinic student attorneys who fought alongside them,” added Professor Laura Rovner, Director of the Civil Rights Clinic. “We thank them, DLC, and our co-counsel for helping to bring about these critically important reforms.”

“We are excited for this important settlement and fortunate to have worked with DLC and d/Deaf and hard of hearing incarcerated people in this lawsuit,” said Pilar Gonzalez Morales, Director of the Accessibility Project at CREEC. “We commend the work of all the people held by CDOC who supported and helped us bring this lawsuit, as well as the work of our co-counsel partners.”

“We are grateful for DLC’s leadership in this important case, and for the courage of the individual incarcerated people who worked with us to document discrimination and craft the settlement,” said Amy Robertson, with the law firm of Fox & Robertson. We look forward to working with the CDOC to implement this ground-breaking settlement.”

National Federation of the Blind of Colorado, Blind Prisoners Resolve Suit Against CDOC.

Colorado Department of Corrections will Correct Systemic Failures that Threatened Privacy and Safety of Blind Incarcerated People.

Icon showing blind person using cane, laptop, and headphones, all behind prison bars.

Brian Christopher Mackes and Adrian Chávez, two blind men in the custody of the Colorado Department of Corrections (CDOC), and the National Federation of the Blind of Colorado have settled the lawsuit they brought against CDOC last year. The suit alleged that CDOC denied blind prisoners access to the aids and services needed to participate in educational programming, work assignments, and recreation. According to the complaint, CDOC also failed to provide blind prisoners with effective communication of the materials and information that the Department provides prisoners in written form, such as handbooks, regulations, and grievance forms. This conduct forced blind prisoners to rely on other inmates to help them with various tasks, such as reading mail, and to provide them with information, threatening their privacy and safety.

The plaintiffs were represented by attorneys from the Civil Rights Education and Enforcement Center (CREEC), the Denver law firm of Fox & Robertson, and the Baltimore law firm of Brown Goldstein & Levy.

The settlement requires that each blind prisoner have access to a laptop loaded with screen reader software, which reads digital material aloud, as well as a typing tutorial program, an ebook reader, and other assistive technology. These devices will also contain accessible-format versions of key prison documents. Blind prisoners will also have access to a scanner and printer to which the laptops can be connected so that they can read mail and other printed documents. All job and education information will be made accessible, and blind prisoners cannot be denied access to any such opportunity based on disability.

“Blind prisoners do not seek, and this settlement does not grant, special treatment,” said Jessica Beecham, president of the National Federation of the Blind of Colorado. “Blind incarcerated people will now receive the accommodations they need, and to which they are legally entitled, in order to fully and equally participate in the programs and opportunities available to other members of the incarcerated population. We commend the Colorado Department of Corrections for reaching this agreement, and hope that other corrections systems throughout our nation will take note of the necessary and humane reforms taking place in Colorado. We are grateful for the leadership of our national organization in coordinating the expertise, resources, and talent to make these changes a reality.”

“We recognize and appreciate the courage of the individual plaintiffs, Brian Mackes and Adrian Chávez, who documented the discrimination they faced and worked with us and with the Department to craft this ground-breaking settlement,” said Amy Robertson, an attorney with Denver’s Fox & Robertson who represented the NFB of Colorado and the individual plaintiffs. “We look forward to working with the CDOC to ensure access and privacy for blind people in CDOC custody.”


About the National Federation of the Blind of Colorado

The National Federation of the Blind of Colorado, an affiliate of the transformative membership and advocacy organization of blind Americans,  is a nonprofit made up of blind people of all ages and their families and friends. NFB-CO is dedicated to ensuring that blind Coloradoans have full and equal access to all the services, programs, and activities of the State. NFB-CO serves as an advocate for change when equal treatment is denied.