When considering whether to enter into a voluntary settlement agreement with a governmental agency regarding the accessibility a place of public accommodation, clients often ask how much protection is gained against potential future claims brought against the same location by other parties.  A recent series of rulings in a litigation brought under Title III of the Americans with Disabilities Act (“Title III”) and other related federal and state statutes against the owners of the restaurant Nobu (“Nobu”) in the U.S. District Court for the Southern District of New York provides some useful insight into this issue.  See Gropper v. Fine Arts Housing, Inc., et al, 2014 U.S. Dist. LEXIS 46455 (S.D.N.Y. April 3, 2014); and Gropper v. Fine Arts Housing, Inc., et al, 2014 U.S. Dist. LEXIS 66229 (May 14, 2014).  As with many issues involving the ADA, the answer is going to depend upon the specifics – namely, the terms of the governmental agreement.

Gropper, an individual with disabilities that require him to use a wheelchair, filed suit in the SDNY alleging that the downtown New York location of Nobu was inaccessible to him due to a variety of architectural barriers (e.g., inaccessible public entrance, lack of accessible routes inside the restaurant, and inaccessible bathrooms).  Shortly after Gropper’s lawsuit was filed, Nobu reached a Voluntary Compliance Agreement (“VCA”) with the U.S. Department of Justice (“DOJ”) with a three year term that covered the vast majority of Gropper’s claims.  Arguing that the VCA already obligated Nobu to address most of Gropper’s claims, Nobu made a motion to dismiss the Title III claims on the grounds of mootness.

The district court denied Nobu’s motion to dismiss the Title III claims because specific provisions of the VCA left open questions regarding Nobu’s ultimate level of compliance.  When considering Nobu’s motion, the district court stressed that the standard for determining whether a case has been mooted by a defendant’s voluntary actions is a stringent one.  Indeed, a defendant needs to establish that:  (i) there is no reasonable expectation that the alleged violation will recur; and (ii) interim relief or efforts have completely and irrevocably eradicated the effects of the alleged violation.

The court found that the VCA did not completely and irrevocably eradicate the effects of the alleged violation because of a provision regarding the creation of an accessible entrance.  Because Nobu is located in a historic district it must obtain Landmarks Preservation Commission (“LPC”) approval before it can undertake certain work.  The VCA acknowledged this process and obligates Nobu to make its “best efforts” to acquire the LPC and other approvals necessary to install an ADA-compliant permanent entrance ramp and does not set a particular timeline for the ramp’s installation.  Based on this provision, the district court highlighted that this alleged violation might remain unresolved for years with the final means of providing an accessible entrance remaining an open issue and, therefore, denied the motion to dismiss Gropper’s Title III claims for mootness.

Notwithstanding its denial of Nobu’s motion to dismiss the Title III claims, the district court did ultimately provide Nobu with some important relief on the basis of the VCA.  Following supplemental submissions on the issue, the court opted to stay the action for the entire term of the VCA.  The court reached this conclusion – over Gropper’s objections and despite his withdrawal of the claims he believed to be covered by the VCA – citing:  (i) the gained efficiencies and the resources conserved by avoiding a litigation about the accessibility of a facility that would be undergoing accessibility enhancements at the same time; and (ii) the public interest in encouraging public accommodations to voluntarily make accessibility enhancements and to do so via cooperative agreements with governmental agencies.  Therefore, the action will not resume until after the term of the VCA expires, at which point the parties will be in a better position to accurately determine Nobu’s level of accessibility (and appropriately consider affirmative defenses).

These holdings should provide places of public accommodation with greater confidence that voluntary agreements reached with governmental agencies will have a level of protective value against similar claims brought against the same location during the term of the governmental agreement.  While the exact terms of the governmental agreement will have to be carefully reviewed to determine whether a viable mootness defense exists at the outset, even if it does not, there should be an argument that other actions should at least be stayed until after the modifications required by the governmental agreement have been made and can be fully considered.