Under title III of the Americans with Disabilities Act, the only remedy the plaintiff can get is injunctive relief and attorneys fees. The court may also fine violators up to $50,000 for a first violation and up to $110,000 for each subsequent violation. Attorney fees are only available if the person prevails. What does it mean to prevail? The United States Supreme Court has said to prevail means to receive a judgment or some relief on the merits by the court. See Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources 532 U.S. 598, 603-604 (2001). Since whether the defendant changes their behavior (the catalyst theory), is not relevant, the defendant may find it better to fix the violations of the Americans with Disabilities Act rather than litigate it and risk a judgment or some kind of decision on the merits coupled with attorneys fees. That is exactly what happened in Rush v. Islands Restaurant. In that case, plaintiffs sued the restaurant because the parking lot did not comply with the Americans with Disabilities Act architectural guidelines. The restaurant decided to fix the problem. The plaintiff realizing that they were about to lose their attorneys fees petitioned the court to have the defendant stopped correcting the problem on the grounds that they were spoiling the evidence. The court was having none of it. The court said that the evidence was already preserved and that to allow the petition would be to force the defendant to continue to violate the Americans with Disabilities Act. Furthermore, allowing such a petition would defeat the whole purpose of the remedy system for Title III, which is designed to allow private parties to act as a private attorney general. While attorneys fees and injunctive relief would no longer work because the claim would be moot, the point was that the problem would be fixed.

Lessons learned: if you are plaintiff, don’t tie your fees to whether a court gives you attorneys fees. If you are a defendant, and you are representing an entity sued for violating title III of the Americans With Disabilities Act, consider fixing the problem, especially if liability is a given and the problem doesn’t take much to fix. That way, you prevent the plaintiff from getting its injunctive relief and attorneys fees.