How Courts are Undermining the American with Disabilities Act’s Private Enforcement Provision

The expression “professional plaintiff” has long been a dirty word in the legal lexicon.[2]   To some, the term describes “rapacious jackals whose declared well-being camouflages their unwholesome appetite for corporate dollars.”[3]   To others, the term describes “misunderstood . . . battle-tested ‘private attorney general[s]’ who shoulder the burden of enforcing regulatory violations for the good of society.”[4]   Despite these dual characteristics, in many statutes, such as the Americans with Disabilities Act (“ADA”), Congress has empowered private citizens to sue people who violate federal law.[5]   Under Title III of the ADA, this means that private individuals can sue the owners of public accommodations who discriminate against disabled individuals.  Discrimination can come in the form of a building lacking a wheelchair ramp, to a department store having aisles that are too narrow to fit someone using a walker.  Despite this grant of power, federal district courts use constitutional standing tests to limit litigious ADA plaintiffs from gaining access to courts. 
In order to encourage private enforcement, the ADA also grants attorney’s fees to plaintiffs who succeed on their claims.[6]  As a result of these incentives, many law firms work with disabled individuals to bring hundreds of suits against large corporations they claim discriminate against disabled people .[7]  Although Congress seems to have understood the dual characteristics of professional plaintiffs, many courts have taken it upon themselves to limit the private enforcement provisions.  The judiciaries inherent mistrust of professional plaintiffs has lead to inconsistent and bizarre results when determining whether or not these testers have standing to sue.
Mr. Harty is a disabled man who has lost the use of his legs and is now confined to a wheelchair.  While his primary residence is in Florida, he has filed hundreds of lawsuits throughout the country.  I would like to focus on two suits he filed in North Carolina.  In Disable Patriots of America, Inc. v. Promenade Shopping Center, LLC.,[8] Mr. Harty filed suit against the defendant shopping center alleging that he was discriminated against under Title III of the ADA.  Similarly, in Harty v. Luihn Four, Inc.,[9] Mr. Harty also alleged that he was discriminated against while eating at a KFC restaurant.  According to Google maps, although the defendants are located 159 miles away from each other, each is located over 700 miles from Mr. Harty’s home in Broward County, Florida.  Despite these similarities, the court in Promenade found that Mr. Harty had standing, while the court in Luihn did not.  The decisive fact ended up being that there was a CVS pharmacy located near the Promenade Shopping Center.  So how did the court get to such a bizarre ruling?
Both courts started off in the same place, looking to Lujan v. Defenders of Wildlife,[10] to help inform their standing analysis.  In Lujan, the Supreme Court found that when the only relief available to a plaintiff is injunctive relief, they must show that it is “likely, as opposed merely speculative, that the injury will be redressed by a favorable decision.”[11]  Like the plaintiff in Lujan, the ADA’s private enforcement provision only offers injunctive relief to Plaintiffs.[12]  Courts have interpreted Lujan as requiring ADA plaintiffs to “demonstrate that [they] will be wronged again by the defendant” by showing that it is likely they will return to the defendant’s place of business.[13]  Despite the fact that ADA plaintiffs have long argued for standing based solely on their tester status, courts have almost unanimously held that tester status alone does not grant standing.  While this maybe the law, it is quite another thing to deny standing simply because the plaintiff is an ADA tester. 
In a hilariously bad attempt to make this conclusion seem logical, one court in the Western District of North Carolina tried to explain their reasoning by stating that:

[T]he law makes clear that a Title III plaintiff cannot use her status as a tester to satisfy the standing requirements where she would not have standing otherwise. Thus, the naked assertion of a desire to return to a defendant establishment for the sole purpose of confirming ADA-compliance, without more, is insufficient to establish standing.[14]

Essentially, the court is saying that because tester status alone does not confer standing, standing can never be predicated on a plaintiff’s desire to return to a business to ensure that they are in compliance with the ADA.
Hold on.
It is one thing to say that tester status alone does not automatically grant standing.  It is quite another to say that testers are not afforded the same treatment as other plaintiff’s in the ADA context.  The intent to return test becomes very one sided and outcome determinative when a court affirmatively states that they will simply not consider the one reason an ADA tester has for returning to the defendants place of business. 
When did courts decide that the motivation behind a plaintiff’s plans to return should have any barring on constitutional standing?  How does the plaintiff’s motivation have anything to do with whether or not they would be discriminated against again if they returned to the defendant’s place of business?  As far as I know, there is not any rule that states that good faith purchasers are some how discriminated against more than testers and therefore are more deserving of a judicial remedy.  Not only does the court’s reasoning not make any sense, but if more courts explicitly adopted this conclusion, it would effectively preclude all ADA suits that were not brought by good-faith shoppers of these defendant stores and would seriously undercut the ADA’s private enforcement provision.
Complicating matters further, many district courts have adopted a four-factor test to help determine when a plaintiff is likely to return.  The four factors are: (1) proximity; (2) past patronage; (3) definitiveness of return; and (4) frequency of near by travel.[15]  Although not explicitly stated, this test limits the number of claims testers can bring.  By concentrating primarily on how close the plaintiff lives to the public accommodation and how often they shopped there in the past, courts almost never find standing in the case of an ADA tester who does not live near the defendant.
In Luihn Four, the court refused to find that Mr. Harty had standing where he lived over 700 miles away and had only visited the KFC once.  The court found that in order for a plaintiff to be likely to return, they must be a good-faith customer of the allegedly infringing public accommodation.  The court completely ignored the fact that ADA testers are uniquely motivated to revisit stores that had previously harmed them to ensure ADA compliance.  Although the.Promenade Shopping Center case came out in favor of Mr. Harty it did so on the bizarre reasoning that there was a CVS pharmacy near by hat Mr. Harty had visited twice and may visit again in the future.
The standing analysis should not rest on the fact that the plaintiff happened to visit a near by store several years before the litigation.  This fact has does not really help answer whether a plaintiff is truly likely to return to an establishment.  As it is know, the four-factor test district courts use discriminate against ADA testers by not taking into account their desire to enforce the statutory mandate of Title III of the ADA.  Furthermore, this test does not provide any real guidelines and creates uncertainty as demonstrated by the two Harty cases.  There is no reason why a CVS pharmacy should be the decisive factor between one court granting and another court denying standing.  While it is unsurprising that many courts are unwilling to hear claims brought by professional plaintiffs, courts should not be denying standing where Congress explicitly gave these plaintiffs the authority to bring suit.  If these ADA testers really are the threat that many courts imagine, it should be Congress not judges who strips them of their power to sue.

[1] 2013 J.D. Canidate, Rutgers University School of Law-Camden, Managing Notes Editor of the Rutgers Journal of Law and Public Policy.

[2] See Murray v. GMAC Mortgage Corp., 434 F.3d 948 (7th Cir. 2006) (“the district judge did not explain . . . why ‘professional’ is a dirty word. It implies experience if not expertise.”).

[3] Brown v. Hart, 96 F.R.D. 64, 67 (N.D. Ill. 1982).

[4] Brandon Murill, The Business of Suing: Determining When a Professional Plaintiff Should Have Standing to Bring A Private Enforcement Action, 52 Wm. & Mary L. Rev. 261,263 (2010).

[5] American with Disabilities Act of 1990, 42 U.S.C. § 12188 (1990).


[7] Wayne C. Arnold & Lisa D. Herzog, How Many Lawsuits Does It Take To Declare An   ADA Plaintiff Vexatious? Apparently More Than Judge Rafeedie Thought, 48 Orange County Lawyer 50, 50 (2006)

[8] Disable Patriots of America, Inc. v. Promenade Shopping Center, LLC., No. 3:08-cv-533-FDW-DCK (W.D.N.C. Nov. 25, 2009).

[9] Harty v. Luihn Four, Inc., 747 F.Supp.2d 547 (E.D.N.C.).

[10] Lujan v. Defenders of Wildlife, 504 US 555 (1992).

[11] Id.

[12] American with Disabilities Act of 1990, 42 U.S.C. § 12188 (1990).

[13] Judy v. Arcade L.P., No. 10-607, WL 345867 2011 (D. Md. Feb. 2, 2011).

[14] Norkunas v. Park Road Shopping Center, Inc., 777 F.Supp.2d 998, 1005 (W.D.N.C. 2011).

[15] See Kramer v. Midamco, 656 F.Supp.2d 740, 748 (N.D. Ohio 2009).