‘High frequency litigants’ in the ADA realm have gone suddenly silent

The Americans With Disabilities Act of 1990 (42 U.S.C. 12101 et seq.)(“ADA”), is a “private attorney general” statute. Enforcement is primarily through lawsuits brought by private individuals who are disabled. In ADA lawsuits brought to enjoin the removal of barriers, such as non-compliant restrooms and parking spaces, attorney’s fees and costs are available, as well as an injunction to remove the barriers. However, damages are not available.

By contrast, the California Unruh Act (Civil Code Section 51 et seq.) and the California Disabled Persons Act (Civil Code Section 54.1 et seq.) similarly mandate the removal of barriers to physical access, but also provide for damages.

In recent years, there was an explosion in the number of ADA access cases in California filed by just a few individuals and law firms. Until recently, about 20% of all civil lawsuits filed in the Northern District of California were ADA access cases.

The California Legislature reacted. In 2012, 2013, and 2015, new laws were passed to address what was perceived to be the systematic abuse of the Unruh Act by “a very small number of plaintiffs’ attorneys.” (See Act of Sept. 19, 2012, Ch. 383, Section 24, 2012 Cal. Stat. 3843, 3871; Cal. Civ. Proc. Code Section 425.50(a); Cal. Gov’t Code Section 70616.5.) In its findings in 2015, the Legislature noted that “54%[ ] of all construction-related accessibility complaints filed between 2012 and 2014 were filed by two law firms ... [and] 46% of all complaints were filed by a total of 14 parties.” Some ADA access plaintiffs were filing hundreds of cases per year.

The judiciary has also reacted. Until recently, California ADA access plaintiffs typically filed cases in federal court with the expectation that the judges would exercise supplemental jurisdiction over the state Unruh Act claim to award damages in addition to attorney’s fees and costs. And until recently, this is what generally happened.

But that changed with the landmark case of Arroyo v. Rosas, 19 F. 4th 1202 (9th Cir. 2021). The Ninth Circuit addressed a district court’s ability, under 28 U.S.C. § 1367(c)(4), to deny the exercise of supplemental jurisdiction over Unruh Act claims brought specifically by “high-frequency litigants.” These are defined as litigants who file more than ten cases in a twelve-month period.

The Arroyo panel found California’s heightened pleading standards for Unruh Act claims created an “exceptional circumstance” justifying denial of supplemental jurisdiction. The Arroyo court also made the distinction of whether a case is at an early stage versus whether the district court has already ruled on the ADA claim – if a case is at an early stage, that militates in favor of declining the Unruh claim – whereas if the federal court has already ruled on the ADA claim, the court should retain jurisdiction over the Unruh claim in the interests of efficiency and comity.

Arroyo was subsequently extended further to non-high-frequency litigants in Vo v. Choi, 49 F.4th 1167 (9th Cir. 2022). The Appeals Court clarified that in making the decision whether to decline supplemental jurisdiction, the district court should not enter into an examination of whether the plaintiff is a high-frequency litigant or not. In other words, the reasoning of Arroyo applies to all ADA plaintiffs in federal court.

Since these two decisions were issued, the majority of federal judges in the Northern District (although not all) have been declining to exercise jurisdiction over Unruh claims.

Coincidentally, since these two decisions, the number of ADA access cases in the Northern District of California has dropped off precipitously. For example, according to PACER, in the period Aug. 1 to Nov. 30, 2023, only 44 ADA access cases have been filed, an average of only eleven cases per month. The high-frequency filers have practically disappeared from the docket.

There has also been somewhat of a shift to state court filings, but not on the same scale. A recent search of the nine-county Bay Area state court dockets shows that the most prolific high-frequency ADA litigants who used to file two or three new ADA cases per day in federal court are now filing only two or three cases per month in state courts. Some of these litigants have stopped filing new cases altogether.

Where does this leave ADA litigants? Even if Unruh damages are not awarded in federal court pursuant to Arroyo and Vo, the basic dynamics of ADA cases remain intact. If defendants do not remove barriers to access, they will very likely lose the case, because the court will likely issue an injunction and award attorney’s fees and costs under the ADA. On the other hand, if defendants take steps to remove all barriers quickly, they can file a motion for summary judgment, pointing out that there is no longer any reason to issue an injunction, and thus the case is mooted in federal court.

The California legislature gave defendants an incentive to remove barriers quickly, with a reduction in Unruh damages if the defendant can get it done within certain short timeframes. (Cal. Civ. Code Section 55.56(g)(1),(g)(2).) The problem for defendants is that some kinds of barrier removal can require a municipal permit, which can take months to obtain. Judges are usually not inclined to hold a case in abeyance while waiting for a municipal building department to issue a permit at some undetermined date in the future. In the meantime, the plaintiff can file a motion for summary judgment to obtain an injunction, attorney’s fees and costs, and possibly Unruh damages.

Finally, there is lurking in the background the possibility of a re-filing of the Unruh damages claim in state court if a case is rendered moot in federal court. Federal judges that dismiss Unruh claims regularly do so without prejudice to refiling in state court, so a federal dismissal on summary judgment may not truly dispose of the case. This fact provides an incentive for defendants to reach a settlement with plaintiff in the federal case, even if they have removed all barriers and could moot the case on summary judgment.