You open your mail to find a federal lawsuit. A plaintiff you've never heard of claims architectural barriers at your Texas business violated the ADA. The demand: $10,000 in attorney fees plus immediate compliance. You check with staff – no one recognizes the name. Security footage shows no record of this person ever entering your business.
Welcome to "drive-by" ADA lawsuits – a growing phenomenon where professional plaintiffs systematically target businesses not to improve accessibility, but to generate attorney fees through quick settlements.
If you've received one of these lawsuits, you need to understand your legal defenses, particularly the powerful "standing" defense that can often help defeat meritless claims and protect your business.
What Is a "Drive-By" ADA Lawsuit?
The term "drive-by lawsuit" comes from the literal practice it describes: Plaintiffs or their agents drive to various businesses, often with measuring tapes and cameras, to identify technical ADA violations – without any genuine intent to patronize those businesses. Some even use Google, Google Earth, or Google Maps to spot potential violations. The goal is simple: find violations, file lawsuits, and demand settlements.
These cases follow a predictable pattern:
The "Testing" Visit
A plaintiff or hired agent visits your business location. They may photograph your parking lot from their vehicle, measure the slope of your accessible route, or briefly enter to document alleged violations. If they make any purchase at all, it's minimal – a soda or a candy bar – just enough to claim they attempted to access your services. Within minutes, they're gone, moving on to the next target.
Demand Letter or Lawsuit
Shortly after their visit, you'll receive either a demand letter or a federal lawsuit. The demand letter typically arrives first, offering you a "choice": Pay thousands in attorney fees, agree to fix the alleged violations, and sign a confidential settlement agreement – or face an immediate federal lawsuit. The deadline to respond is short, usually 10 to 30 days.
Common violations alleged in Texas cases include:
- Handicap parking signs at incorrect heights or lacking proper designations
- Parking space dimensions that fall short by inches
- Accessible route slopes exceeding ADA standards
- Door pressure or width violations
- Restroom grab bar placement
- Service counter heights
- Signage that doesn't meet technical specifications
Settlement Pressure
The demand letter emphasizes that settlement is "cheaper than litigation." This isn't wrong – defending an ADA lawsuit through trial can cost tens of thousands of dollars in legal fees. The settlement offer is structured to seem reasonable by comparison. Confidentiality clauses prevent businesses from discussing the case or warning others. Once you settle, the plaintiff and attorney move to their next target.
The Financial Model Behind Drive-By Litigation
Here's why these lawsuits proliferate: while plaintiffs cannot recover monetary damages under federal ADA Title III, their attorneys can recover fees if they prevail. This creates a lucrative high-volume business model.
Consider the math: If an attorney files 4,000 cases and settles each for an average of $10,000 in fees, that's $40 million in gross revenue. Recent reporting has documented law firms operating this model precisely, with individual plaintiffs filing hundreds or even thousands of lawsuits across multiple states.
The Difference Between Drive-By Suits and Legitimate ADA Claims
Not all ADA lawsuits are drive-by suits. Legitimate accessibility claims involve genuine patrons who were actually denied access to goods or services they wanted. These plaintiffs have suffered real harm: They couldn't enter a store they intended to shop at, couldn't use a restroom when needed, or couldn't access a website to make a purchase.
Drive-by plaintiffs are different. They're professional testers with no genuine intent to patronize your business. This distinction is critical for the legal defense we'll discuss next: standing.
What to Do If You Receive a Drive-By ADA Lawsuit
If you receive an ADA demand letter or lawsuit, follow these steps immediately:
Step 1: Do Not Panic (But Do Not Ignore)
First and foremost, take the complaint or demand letter seriously. Read it carefully and note the deadline for response – typically 20 to 30 days for a federal lawsuit. Failure to respond to a lawsuit results in a default judgment.
Do NOT:
- Contact the plaintiff directly
- Make any admissions
- Immediately agree to the settlement terms
- Destroy any evidence
DO:
- Preserve all evidence related to the alleged visit
- Check security footage
- Review transaction records
Step 2: Document Everything
Thoroughly photograph or document all areas of your property mentioned in the complaint. The plaintiff has certainly done the same. Because changes are sometimes made to properties over time, it's critical to have your own contemporaneous evidence.
Pay special attention to documenting alternatives to alleged violations. For example, if the complaint alleges inaccessible stairs, photograph the accessible ramp located at the side of the building. These alternatives can be crucial to your defense.
Step 3: Contact an Experienced ADA Defense Attorney Immediately
ADA litigation is highly technical and specialized. You need an attorney comfortable handling these cases – preferably one with experience defending against drive-by suits.
Your attorney can:
- Evaluate the validity of the plaintiff’s claim. Some serial plaintiffs use boilerplate complaints, alleging violations that don't actually exist at your property. If violations are falsely alleged, sanctions may be available against the plaintiff.
- Investigate the plaintiff. Many drive-by plaintiffs are serial filers whose patterns become evident through thorough investigation. This litigation history is powerful evidence that the plaintiff is a professional tester rather than a genuine patron.
- Consider the “mootness” defense. If violations exist and can be remediated economically during the lawsuit, this can render the case "moot" – meaning there's nothing left for the court to enjoin. This can result in dismissal and potentially eliminate liability for the plaintiff's attorney fees.
- Analyze landlord/franchisor liability. If you rent your physical space, your lease may require the landlord to maintain ADA compliance. Similarly, franchise agreements may allocate responsibility to the franchisor. Your attorney may advise tendering a defense demand to the responsible party.
- Evaluate settlement vs. defense options. Your attorney will weigh the strength of your standing defense, the plaintiff's litigation history and credibility, and whether the settlement demand is reasonable compared to defense costs and remediation expenses. Critically, this analysis also considers whether settling might signal that your business is an easy target and invite additional suits.
- Help you make an informed decision. Not every case should settle. Your attorney will provide a realistic assessment of your options and help you make the decision that's best for your business.
Common Legal Defenses for Meritless or Harassing ADA Litigation
When defending drive-by ADA lawsuits, experienced attorneys evaluate multiple defenses:
Challenging Standing
Under the ADA, a plaintiff must prove they suffered a concrete injury from an ADA violation that is traceable to the defendant's conduct and can be remedied by a court order – meaning they must show they were actually deterred from patronizing a business they genuinely intended to visit, not merely that they observed a violation while "testing" for compliance. If the plaintiff can’t establish these facts – known as “standing” – the entire case can be dismissed without ever reaching the merits, and no attorney fees are owed.
No Actual Disability
To sufficiently plead a disability, a plaintiff must allege facts showing they have "a physical impairment or mental impairment that substantially limits one or more major life activities." Vague allegations like "I have disabilities" are insufficient. The Fifth Circuit requires specific factual support.
Not Public Accommodation
The ADA defines "public accommodation" as physical spaces open to the public. The Fifth Circuit has emphasized that this requires an actual place of business, not just any entity.
Plaintiff Was Not Denied Full and Equal Enjoyment
The plaintiff must show they were actually excluded from or denied access to your services. If they never intended to use your services, they can't claim denial.
Improper Damages Claim
Damages are not recoverable in a private action under Title III of the ADA. Only injunctive relief and attorney fees are available. Any complaint seeking compensatory or punitive damages is legally improper and should be dismissed.
Legitimate ADA Enforcement vs. Litigation Abuse
It's important to maintain perspective. The Americans with Disabilities Act is a landmark civil rights legislation that has transformed American society for the better. The law ensures equal access for people with disabilities to employment, public accommodations, transportation, and government services.
Private enforcement through lawsuits serves an important purpose. The Department of Justice has limited resources and can't monitor every business for compliance. Private citizens must be able to enforce their rights when businesses fail to provide required access.
The need is for balance: real accessibility violations should be remedied, but businesses should not be targets for bad-faith litigation campaigns.
Don't Let Drive-By Lawsuits Put Your Business at Risk
At Hendershot Cowart P.C., we are seeing more and more clients sued by vexatious plaintiffs for violations of Title III of the Americans with Disabilities Act. Similar to the “patent trolls” of the 2000s, drive-by lawsuits are unfairly targeting small business owners who can least afford the time and money to defend meritless ADA claims.
We understand your concerns and will evaluate a defense or settlement response in the best interests of your bottom line and long-term success.
Our business litigation attorneys will:
- Investigate the plaintiff's litigation history and residential location
- Evaluate standing defenses specific to your case
- Verify whether alleged violations actually exist
- Analyze strategic remediation options
- Negotiate reasonable settlements when appropriate
- Aggressively defend when plaintiffs’ claims lack merit
- Protect your business and your rights
We know you're running a business, not a legal defense operation. Our goal is to resolve these cases efficiently while protecting your interests.
If you've received an ADA demand letter or lawsuit, contact us immediately for a confidential consultation. Call (713) 528-8793 or contact us online 24/7.
Don't let a drive-by lawsuit put your hard-earned business at risk.