Facing an ADA Title III Lawsuit? A Practical Guide to Defense Strategies

 Introduction

In 2025, more than 8,600 Americans with Disabilities Act Title III lawsuits were filed in, or removed to, federal court against private businesses—more than three times the 2013 total.  For businesses facing a Title III lawsuit, the immediate question is how best to respond. For defense counsel, the immediate question is how to respond when an ADA lawsuit arrives. An early, confidential settlement with the lowest practical payment can cut off the plaintiff’s fees and reduce defense costs, but a settlement is not always available—or strategically sound. This article explains the Title III framework, identifies key defenses, and examines the strategic choices that most often determine the cost and outcome of these cases.

The Statutory Framework

Title III, 42 U.S.C. §§ 12181–12189, prohibits discrimination “on the basis of disability in the full and equal enjoyment” of places of public accommodation by any person who owns, leases (or leases to), or operates them. The statute identifies 12 categories of public accommodations, encompassing hotels, restaurants, theaters, stadiums, convention centers, gas stations, grocery stores, shopping centers, museums, parks, golf courses, public transportation terminals, and many other businesses.

Private Title III actions provide only injunctive relief and attorney’s fees. In practice, however, the absence of federal damages may be illusory because plaintiffs often pair ADA claims with state-law claims. Examples include California’s Unruh Civil Rights Act, which provides a minimum award of $4,000 per offense; the New York State and City Human Rights Laws; and the Michigan Persons with Disabilities Civil Rights Act (PWDCRA), which permits compensatory damages for “injury or loss caused by each violation.” Recoverable damages under the PWDCRA may include economic loss, such as lost wages, and noneconomic harm, such as emotional distress, humiliation, and mental anguish, as well as reasonable attorney’s fees.

ADA Title III Defenses

The strongest defenses in ADA litigation are often jurisdictional. Counsel should evaluate them during the first two weeks of the engagement, before the answer is due. When a viable threshold defense exists, defense counsel should raise it promptly in writing with plaintiff’s counsel. If that does not resolve the issue, counsel should consider a Rule 12 motion.

Standing

Because Title III authorizes only prospective relief, a plaintiff must allege a real and immediate threat of future injury—not merely a past encounter with a barrier. Courts assess the plausibility of an intent to return by considering factors such as the plaintiff’s distance from the facility, history of patronage, concrete plans to return, and frequency of travel to the area. A serial plaintiff who lives hundreds of miles away and has sued dozens of similar businesses may therefore be vulnerable to a facial or factual Rule 12(b)(1) motion.

The status of “tester” plaintiffs remains unsettled. The Supreme Court granted review in Acheson Hotels, LLC v. Laufer, 601 U.S. 1 (2023), but dismissed the case as moot without deciding the question, leaving a circuit split intact. The circuits generally agree that a plaintiff’s testing motive does not, by itself, defeat standing. They disagree, however, over whether a tester who has no genuine plan to visit or use the business suffers a concrete Article III injury.

The Ninth, Tenth, and Eleventh Circuits hold that a testing motive is irrelevant when the plaintiff personally encounters a barrier and is likely to return, relying on Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982). The sharper divide concerns testers who have no intent to visit:

No Standing Found:

• Fifth Circuit, Laufer v. Mann Hospitality, 996 F.3d 269 (2021): she had no concrete plans to travel to the area.
• Tenth Circuit, Laufer v. Looper, 22 F.4th 871 (2022): no concrete injury without intent to use the website to book a room.
• Second Circuit, Harty v. West Point Realty, 28 F.4th 435 (2d Cir. 2022): applying TransUnion v. Ramirez (2021), it held that missing information is not enough without “downstream consequences” tied to an actual interest in using it.
• Seventh Circuit, Carello v. Aurora Policemen Credit Union, 930 F.3d 830 (2019): The plaintiff couldn’t even join the credit union, so the alleged inaccessibility of the credit union’s website could cause no injury.

Standing Found:

• First Circuit, Laufer v. Acheson Hotels, 50 F.4th 259 (2022): being denied information the ADA requires, plus the frustration and humiliation of encountering discrimination, is a concrete injury even without plans to stay.
• Fourth Circuit, Laufer v. Naranda Hotels, 60 F.4th 156 (2023): rejected Harty and Looper, finding a stigmatic injury from personally encountering the discrimination.
• Eleventh Circuit, Laufer v. Arpan LLC, 29 F.4th 1268 (2022): found a stigmatic injury, but that opinion was later vacated as moot after the case was dropped.

Website cases receive especially close scrutiny. In Calcano v. Swarovski North America Ltd., 36 F.4th 68 (2d Cir. 2022), the Second Circuit rejected boilerplate allegations of an intent to return as conclusory. Federal courts in New York have since applied more rigorous standing requirements—one reason filings there have shifted to state court. TransUnion LLC v. Ramirez, 594 U.S. 413 (2021), likewise confirmed that a bare statutory violation, without concrete harm, does not establish standing.

Practical takeaway. In the Second, Fifth, Seventh, and Tenth Circuits, defendants can often defeat online-reservation or website claims brought by tester-only plaintiffs at the pleading stage unless the plaintiff alleges a concrete plan to visit or use the business. In the Fourth Circuit—and arguably in the First and Eleventh Circuits—informational- or stigmatic-injury theories may survive the pleading stage.

Mootness

Remediation is often the most powerful Title III defense because it can end the case and cut off fee exposure. Under Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001), a plaintiff does not become a “prevailing party” entitled to ADA fees merely because the lawsuit prompted voluntary change; a judgment or court-ordered consent decree is required.

Voluntary cessation moots a claim only when it is “absolutely clear” that the challenged conduct cannot reasonably be expected to recur. Friends of the Earth, Inc. v. Laidlaw Environmental Services, 528 U.S. 167 (2000). Permanent structural corrections—such as regrading a parking space or rebuilding a ramp—usually satisfy that standard when supported by an expert declaration, photographs, and measurements. Policy changes and website corrections are more difficult because they can be reversed or regress after a later content update. A stronger record includes documented remediation, a written accessibility policy, recurring audits, and a designated employee responsible for compliance.

Statute of Limitations

The ADA contains no limitations period of its own. Courts therefore borrow the most analogous state limitations period, usually the personal-injury statute. Plaintiffs often respond by invoking a continuing violation theory for barriers that remain in place.

Construction Dates and Safe Harbors

The accessibility standard governing a challenged element depends on when the element was built or altered. Complaints frequently invoke the wrong standard, apply the correct standard to the wrong element, or overlook an available safe harbor.

• Pre-1993 facilities need only remove barriers where removal is “readily achievable.”
• Post-1993 facilities must comply fully with the applicable ADA Standards, subject only to structural impracticability.
• Alterations must be accessible to the maximum extent feasible, and alterations to a primary function area trigger path-of-travel obligations, capped where the cost is disproportionate (over 20% of the alteration cost).
• Safe harbors. Elements that complied with the 1991 Standards generally need not be upgraded to the 2010 Standards until they are altered. 28 C.F.R. § 36.304(d)(2). Thus, in an existing facility, an element that already satisfies the 1991 Standards does not ordinarily require an upgrade solely for barrier removal or program access. This defense is especially important when a serial-plaintiff complaint relies on requirements introduced in 2010, such as revised reach ranges, certain toilet-room clearances, or other changed dimensions.

Obtaining permit histories, certificates of occupancy, and renovation records early can substantially narrow the complaint.

Readily Achievable Barrier Removal

“Readily achievable” means “easily accomplishable and able to be carried out without much difficulty or expense.” The inquiry considers the nature and cost of the proposed action, together with the overall resources of the facility and any parent entity. 42 U.S.C. § 12181(9). Several circuits require the plaintiff first to identify a specific, plausible method of removal and show that its cost does not exceed its benefit; the burden then shifts to the defendant. Colorado Cross Disability Coalition v. Hermanson Family Ltd. Partnership, 264 F.3d 999 (10th Cir. 2001); Roberts v. Royal Atlantic Corp., 542 F.3d 363 (2d Cir. 2008). A plaintiff who offers no expert opinion, cost estimate, or design may be vulnerable at summary judgment. When full removal is not readily achievable, the defendant must still provide goods and services through readily achievable alternative methods.

Websites and Mobile Apps

The circuits remain divided over whether a website is itself a “place of public accommodation.” The Ninth Circuit requires a nexus between the website and a physical location. Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (9th Cir. 2019). The Third and Sixth Circuits have likewise tied coverage to physical places. Ford v. Schering-Plough Corp., 145 F.3d 601 (3d Cir. 1998); Parker v. Metropolitan Life Insurance Co., 121 F.3d 1006 (6th Cir. 1997) (en banc). By contrast, the First and Seventh Circuits, along with many district courts in New York, read the statute more broadly. For a business without a physical location, forum selection can therefore be decisive.

The Department of Justice still has no regulation establishing a technical standard for private-sector websites. Courts generally reject due-process and primary-jurisdiction defenses based on that regulatory gap. More productive defenses focus on standing, mootness supported by documented remediation, and proof that the alleged barriers did not prevent equal access.

Auxiliary Aids, Policies, and Service Animals

Claims involving communication access, policy modifications, and service animals present distinct defenses. A requested modification may be denied if it would fundamentally alter the nature of the goods or services, and an auxiliary aid may be denied if it would impose an undue burden. 42 U.S.C. § 12182(b)(2)(A)(ii)–(iii). Exclusion based on a direct threat to the health or safety of others is permitted only after an individualized assessment grounded in current medical knowledge or objective evidence.

Developing a Litigation Strategy

In many ADA cases, the plaintiff’s attorney’s fees—not the cost of remediation—can represent the greatest financial exposure. Each strategic decision should therefore be evaluated with that potential exposure in mind.

Retaining an Expert Immediately

An accessibility expert can be engaged through counsel at the outset to preserve work-product protection for the initial assessment. The expert should inspect the facility or audit the website using both automated tools and manual screen-reader testing. Then classify each allegation into one of four groups:

1. Not a violation.
2. Protected by a safe harbor or construction-date rule.
3. Capable of immediate correction.
4. Not readily achievable or subject to an undue-burden defense.

Remediate Early and Document Everything

For Title III defendants, prompt remediation of items that can be fixed immediately is often the single most effective step. It narrows the injunctive claim, supports a mootness motion, and limits the period during which the plaintiff’s fees accrue. Document each correction with dated photographs, measurements, invoices, and a supplemental expert declaration. For websites, reinforce remediation with a written accessibility policy, a public accessibility statement and contact channel, and scheduled re-audits, because courts look for assurance that the corrections will endure.

Choose the Resolution Path Carefully

1. Early individual settlement. Often, the most economical path is against a serial plaintiff. Keep the agreement private, include a release of state-law claims, and set a realistic remediation timeline.
2. Rule 68 offer of judgment. Useful when liability is likely but the plaintiff’s fee demand is inflated; it can shift post-offer costs and, in many courts, fees.
3. Motion practice. Standing and mootness motions are worth the investment when the record is strong — a distant plaintiff, completed permanent fixes, or a circuit with strong supporting caselaw.
4. Consent decree. Although required for some institutional and Title II settlements, this is not recommended for Title III cases, because such decrees can make the plaintiff a prevailing party for fee purposes, can lead to ongoing “supervision fees” by plaintiff’s counsel, and can include court supervision in some instances.

Insurance Tenders

Commercial general liability policies often exclude or limit discrimination claims, but coverage may still exist depending on the alleged business practices and the damages sought. First identify the role of each defendant and potentially responsible third party—owner, architect, landlord, tenant, operator, or public entity. Then tender the claim promptly to all potentially applicable insurers and indemnitors.

Key Takeaways and Defense Checklist

The strongest ADA defense combines rigorous jurisdictional analysis with a credible commitment to accessibility. Courts tend to reward defendants who correct what can be corrected, document why other measures are not feasible, and hold plaintiffs to their burdens on standing and the merits.

When a lawsuit arrives, defense counsel should promptly:

• Issue a litigation hold covering facility, construction, and website records.
• Identify every defendant’s role (owner, landlord, tenant, operator, public entity) and tender to insurers and indemnitors.
• Research the plaintiff’s litigation history, residence, and alleged visits.
• Retain an accessibility expert through counsel and inspect the site or audit the website.
• Pull permit and alteration histories to apply the safe harbor and construction-date rules.
• Evaluate standing, mootness, limitations, and other defenses.
• Confirm the governing circuit’s rules on tester standing and website coverage.
• Begin remediation of readily fixable items and document each fix.
• Analyze the fee exposure and select a resolution path.

This article provides general information and is not legal advice. Case law in this area varies by circuit and changes quickly, so all current authority should be researched and verified.

Related Practice Areas:

• Commercial & Business Litigation

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