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Businesses are obliged to ensure that their facilities comply with the Americans With Disabilities Act. But can anyone who believes he has found a violation somewhere sue to remedy it? The U.S. District Court for the District of Maryland recently considered what types of plaintiffs may initiate such litigation, and excluded out-of-state persons that merely “test” faraway properties for ADA compliance.

The plaintiff in Nanni v. Aberdeen Marketplace, Case 1:15-cv-02570-WMN (D. Md. May 4, 2016), was a Delaware resident with a disability who said that he traveled along Interstate 95 into Maryland to visit with family and friends and attend various events. He alleged that he had stopped at Aberdeen Marketplace up to four times to rest and take a bathroom break. During those visits, he contended, he encountered various barriers to accessing the stores and services, defects that he believed ran afoul of the ADA. Asserting an intention to patronize to the shopping center up to three times a year and also test the facility’s compliance with the ADA, Plaintiff sought declaratory and injunctive relief. Represented by Silverman|Thompson|Slutkin|White, Aberdeen Marketplace moved to dismiss the lawsuit.

First, a little background on “standing”: To be able to bring a lawsuit, a plaintiff has to demonstrate that he suffered an injury in fact – that is, an actual or imminent invasion of a legally protected interest that can be remedied by a judicial decision. When a plaintiff requests injunctive relief, he also has to show a “real and immediate threat” of being wronged in the future, a likelihood that is greater than a “mere possibility.” Applied in the context of Plaintiff’s lawsuit, he had to describe “specific concrete plans” to return to Aberdeen Marketplace and how he would be similarly injured during those future visits.

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