September 21, 2021

Volume XI, Number 264


September 20, 2021

Subscribe to Latest Legal News and Analysis

Sued by an ADA Serial Litigant in Nevada? Help May Be On the Way!

On August 8, 2017, the Nevada attorney general moved to intervene in an action brought by Americans with Disabilities Act (ADA) serial litigant Kevin Zimmerman and to consolidate it with the more than 150 other pending Zimmerman actions in the U.S. District Court for the District of Nevada. The attorney general cited the state’s “strong interest in protecting the public interest from malicious or premature lawsuits that threaten Nevada businesses [sic] owners and adversely impact Nevada’s general economy.” 

In 2017 alone, Zimmerman and his counsel, Whitney Wilcher, have filed more than 250 Title III “drive-by” actions against businesses in and around Las Vegas. Presumably, the Nevada attorney general will next move to seek dismissal of the more than 150 remaining actions by Zimmerman and/or his counsel in all of these actions on the grounds that the complaints are “malicious or, at best, premature and poorly drafted.”

Background on the Zimmerman Drive-By Lawsuits

Zimmerman’s 250 lawsuits filed in 2017 alone each allege nearly identical civil rights violations under Title III of the ADA. In each lawsuit, Zimmerman alleges that he was denied equal access to places of public accommodation as a result of a technical violation of the ADA Standards for Accessible Design for building and designing facilities.

These lawsuits are often called “drive-bys” because the plaintiff is said to be able to accrue a claim simply by driving by or stopping by the location and identifying common technical violations in the parking lot or at the front entrance. Knowing that defending and even winning a lawsuit would likely cost more than making a quick settlement, many businesses decide to settle, often for less than $5,000.  

The Arizona Attorney General Struck First

The Nevada attorney general’s office may have borrowed its strategy from the Arizona attorney general. As we reported in August of 2016, the Arizona attorney general filed motions to intervene and then to dismiss in all of the cases filed by Advocates for Individuals with Disabilities Foundation, Inc., a notorious serial plaintiffs’ firm. That motion was granted, and in February of 2017, the court granted the Arizona attorney general’s motion to dismiss with prejudice in virtually all of the consolidated cases.

The Takeaway

While the Nevada attorney general’s involvement may ultimately result in the dismissal of the outstanding cases filed by Kevin Zimmerman, it is unlikely to bring an end to these types of lawsuits in either Nevada or in general. In fact, we have seen virtually identical complaints to those filed by Zimmerman being filed in other western states, such as Arizona, Utah, and New Mexico. While it is has not yet been confirmed, there is some evidence and lots of speculation that the various firms throughout these states have been working together in an organized manner to pursue accessibility cases. If Zimmerman’s cases are ultimately dismissed, we would not be surprised to see a new plaintiff-lawyer team surface to pick up where Zimmerman left off. 

Therefore, business owners in Nevada and elsewhere may want to carefully assess their places of business and their services to ensure that they comply with the ADA. After defending countless accessibility lawsuits throughout the years, we have noticed that the same types of barriers are routinely alleged in complaints. Compliance and avoidance are usually more cost-effective than defending these kinds of cases and help ensure the availability of your goods and services to all customers.

© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume VII, Number 223

About this Author

Amber Roller  Labor and Employment and Disability Access attorney at Ogletree Deakins

Amber Roller is an associate in the Labor and Employment practice in the firm's Los Angeles office. Ms. Roller received her undergraduate degree from the University of California, Los Angeles (UCLA). She went on to receive her J.D. from Southwestern Law School in 2010, where she graduated with honors. While attending Southwestern Law School, Ms. Roller was a member of the Southwestern Law School Moot Court Honors Program. Prior to practicing Labor and Employment, Ms. Roller practiced civil litigation in the area of insurance defense.

In her employment litigation practice, Amber...

David Raizman, Disability RIghts Practice, Attorney, Ogletree Deakins Law Firm

David Raizman is nationally known for his disability rights practice, specifically for his work under Title III of the Americans with Disabilities Act. In 2012, he was recognized by the Los Angeles Daily Journal as one of the top labor and employment attorneys in California and has been recognized multiple times as a Southern California Super Lawyer.

David works extensively with hotels, sports franchises, stadium and arena owners and operators, amusement parks, theaters, retailers, municipalities and many other clients with operations open to the public to help...