Seyfarth Synopsis:  In a refreshing breath of fresh air, a federal judge holds that an intent to return as a “tester” does not give a plaintiff standing to sue under Title III of the ADA.

As we’ve reported before, the number of ADA Title III lawsuits has surged in the past few years, mostly in part due to a handful of plaintiffs who file hundreds of lawsuits each year.   Because a court can only consider an ADA Title III claim when there is a threat of an imminent future injury, these serial plaintiffs typically allege in their complaints that they have an intent to return to the business as a patron and that they are “testers” whose sole purpose is to see if the business is complying with the law.  Some courts have held that a plaintiff’s status as a tester does not necessarily bar the suit, emboldening plaintiffs to file even more suits in these jurisdictions.

U.S. District Judge Nickerson, in the District of Maryland, held in an Order issued on May 4 that an intent to return to the business as a tester does not give a plaintiff standing to sue.  “This court is not aware of any authority showing that Title III of the ADA was intended to create such broad rights against individual local businesses by private parties that are not bona fide patrons, and are not likely to be bona fide patrons in the future.”  The court was not convinced that the plaintiff would be visiting the defendant’s shopping center as a patron in the future because he had filed twelve other lawsuits against other businesses in the same vicinity along the I-95 corridor.  Those lawsuits undermined his claim that he would be visiting this particular shopping center –as opposed to all those other businesses — as he traveled on the interstate.   

Kudos to Judge Nickerson for a sensible ruling.