Can an ADA lawsuit be filed against a company located outside the US?

The answer is yes — and here is a case to watch that is going to test that theory, at least in one state

Child next to large standing globe with finger to the east of Ethopia
Child next to large standing globe with finger to the east of Ethopia
Photo by Amy Humphries on Unsplash

Remember, this is NOT legal advice. If you find yourself in this situation, you need to consult a US lawyer who specializes in accessibility cases, and a foreign attorney who specializes in enforcing US judgments.

There are three basic phases for every US civil lawsuit, no matter how complicated or what the subject of the lawsuit is about:

  1. Can you win the lawsuit?
  2. If you win, can you collect the damages you have been awarded?

Phase 1: Can you file the lawsuit?

In the US, anyone can sue anyone else for anything. An American lawyer will never state with 100 % certainty that taking a particular action will “prevent” a lawsuit from being filed, because “frivolous lawsuits” as they are called, happen all the time. God has been hauled into court in the US, as has Satan, the devil, and other imaginary people. It is well known both anecdotally and objectively that the US is the most litigious country in the world. We spend 2.2 % of our GDP on legal costs. When I recently used the term “professional plaintiff” on an accessibility presentation where the audience was primarily Swedish, one of the participants asked in a chat room, “Is that really a thing?” followed by the “laughing so hard I am crying” emoji.

Phase 2: Can you win the lawsuit?

Standard civil lawsuit rules apply here. The plaintiff must prove:

  1. Jurisdiction (i.e., the court handling the case has power over the defendant)
  2. The laws cited in the complaint were actually broken by the defendant’s actions or inactions.
  3. The plaintiff was harmed by these laws being broken.
  1. Defendant loses, because the case is dismissed in the future, or the defendant loses after a trial.

Phase 3: If you win, can you collect the damages you have been awarded?

To enforce a judgment, the plaintiff must have a certified and final (i.e., the right to appeal has expired) judicial award. If the case was against a US defendant, and they refuse to pay, the plaintiff can take the judgment to a sheriff’s office and pay them to enforce the judgment. But the sheriffs are limited to seizing property and bank accounts that are based in the US — a sheriff in Pennsylvania or New Jersey can’t fly to Australia and try to enforce a court award down under.

  • That was found to be enforceable outside the US (even harder to get)
  • The plaintiff would still collect between pennies on the dollar of the award and nothing.

Are there other paths to take besides obtaining the damages?

While waiting for the judgment to be enforced, the plaintiff can attempt to make the defendant’s life miserable, which ratchets up the pressure for the defendant to pay the judgment. The plaintiff can:

  • ask the secretary of state to revoke the right of the business to operate in that state by taking away their “certificate of good standing.”
  • wage a public relations campaign by posting in relevant public forums about how they have a valid US lawsuit award that the company won’t honor (being careful to stay on the right side of libel laws).
  1. Winning an exceptional case is not the same as collecting on that win.

Written by

Accessibility Architect @ VMware. W3C Silver, ITI & IAAP GLC committees. Degrees in CS, law, business. Wheelchair user w/ a deaf daughter.

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