The prevailing wisdom in Americans with Disabilities Act litigation is that defendants who successfully prevail in ADA and Unruh Civil Rights Act lawsuits cannot recover their attorneys' fees or defense costs. This prevailing wisdom compels most businesses to settle, rather than pursue a meritless case to summary judgment or trial. The tide may just be changing as more courts are awarding successful defendants their attorney's fees and defense costs.
As we recently posted, a JMBM client was awarded over $100,000 in attorneys' fees and costs in two separate cases. The first award of fees and costs was against high frequency litigant Orlando Garcia, and the second award was against the law firm representing him, the Center for Disability Access. Garcia and the Center for Disability Access appealed the awards; however, our clients will nevertheless seek to enforce the judgments pending the appeals.
In a separate case earlier this month, the 9th Circuit Court of Appeals affirmed the trial court's award of litigation costs in favor of Gateway Hotel LP, finding that the trial court did not abuse its discretion when it awarded the hotel the costs it incurred in successfully defending Garcia's ADA lawsuit. See Garcia vs. Gateway Hotel LP (9TH Cir. 21-55926 9/15/23).
Federal Rule of Civil Procedure 54(d)(1) gives courts the discretion to award costs to a prevailing defendant. The Garcia decision clarified the circumstances under which a defendant may be awarded costs in an action brought under the ADA. The case involved allegations that the hotel's website reservation policies and practices violated Section 302(e) of the 2010 Americans with Disabilities Act Standards by not adequately informing guests of the hotel's accessibility features, even though numerous courts rejected those very arguments.
The Court of Appeals concluded that the fee-and cost-shifting provision of the ADA (requiring defendant businesses to pay the plaintiff's fees and costs) provides that a "prevailing ADA defendant may be awarded its costs at the district court's discretion and without a finding that the action was frivolous, unreasonable or without foundation."
Our experience is that under certain circumstances, courts will award defense costs to prevailing defendants without a finding that the litigation was frivolous or vexatious. Courts may also award prevailing defendants their attorney's fees if it is proven that the litigation was frivolous or vexing.
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