AGG Files Amicus Brief on Behalf of ICSC Advocating for Commercial Property Owners in Fifth Circuit ADA Tester Lawsuit

On October 7, 2026, AGG filed an amicus curiae brief on behalf of the International Council of Shopping Centers (“ICSC”) in a significant Americans with Disabilities Act (“ADA”) case before the United States Court of Appeals for the Fifth Circuit.

The brief, authored by AGG Real Estate Litigation attorneys David Marmins and Natalie Cascario, supports a commercial property owner’s challenge to whether a repeat ADA “tester” plaintiff has standing to bring a lawsuit without demonstrating a concrete likelihood of returning to the property.

The American Hotel & Lodging Association and American Resort Development Association joined the brief, emphasizing the issue’s significance across the commercial real estate, retail, and hospitality industries.

The Standing Issue Before the Fifth Circuit

In Thomas v. 5860 San Felipe, Ltd., a Houston shopping center owner is appealing a district court ruling in favor of an ADA tester plaintiff. According to the brief, the plaintiff has filed 83 ADA lawsuits in the Houston area.

ICSC argues that ADA plaintiffs must establish a concrete, particularized injury and a genuine likelihood of future harm to have standing under Article III of the U.S. Constitution. A general statement about potentially returning to a property should not be sufficient. In this case, plaintiff Thomas only visited the shopping center three to five times over 20 years and had no intention of going back.

The brief also highlights the financial burden of serial ADA litigation. Commercial property owners frequently face demands for attorneys’ fees and remediation, with many choosing settlements of $5,000 to $10,000 rather than incurring substantially greater litigation expenses to fight even meritless cases or those involving minor and easily remedied ADA violations.

ICSC maintains that enforcing established standing requirements would help direct resources toward meaningful accessibility improvements rather than litigation costs driven by claims lacking concrete injury.

ADA Tester Standing: Implications for Shopping Center Owners

The Fifth Circuit’s decision could have significant implications for shopping center owners and other commercial property stakeholders facing recurring ADA tester lawsuits. A ruling reinforcing Article III standing requirements could give owners a stronger basis to challenge claims brought by individuals without a genuine likelihood of returning to the property.

Shopping center owners should also carefully evaluate ADA demands before agreeing to settlements. Owners should assess the alleged violations, the plaintiff’s claimed injury and intent to return, and the potential costs of litigation and remediation. Reviewing lease provisions that allocate ADA compliance responsibilities between landlords and tenants can further help manage risk.

Importantly, the brief does not seek to diminish legitimate ADA protections. Commercial property owners must continue meeting ADA accessibility requirements and addressing legitimate barriers. ICSC’s position seeks to preserve those protections while ensuring that lawsuits meet established constitutional standards. A favorable ruling could help owners direct more resources toward meaningful accessibility improvements rather than defending claims unsupported by concrete injury.

For questions about ADA tester litigation, accessibility claims, or commercial real estate disputes, please contact David Marmins or Natalie Cascario.