Last week’s Quick Hits blog got a good response, so we are repeating it this week. Both of this week’s cases concern abusive serial litigation and the efforts of courts and state governments to put an end to it.
Ford v. Jalisco Market, LLC, 2:16-CV-619-CW-BCW, 2017 WL 4621612, at *15 (D. Utah Oct. 13, 2017) is in many ways a companion to last week’s Ford v. H Unit Five, Inc. The same serial filer and her counsel worked desperately but to no avail to keep a lawsuit alive after all the originally pled ADA violations had been remediated. The decision is a good read for defense counsel because the tortious path to dismissal included a number of mis-steps to avoid. For any concerned business the case has fresh interest because of the Court’s observation that the conduct of the plaintiff’s lawyer might constitute a violation of the applicable standards of conduct. Besides the serial nature of the lawsuit, the Court noted that the plaintiff’s response to any effort at discovery or defense was to increase her settlement demand and take some action intended to drive up the cost of defense. In other words, plaintiff and her counsel were using otherwise legitimate procedures only as means to coerce settlement. This is not an uncommon litigation tactic, but the Court’s recognition of the fact that serial lawsuits of this kind are nothing but an exploitation of the ADA and the court system is one that seems to be spreading.
Zimmerman v. GJS Group, Inc., 2017 WL 4560136 (D. Nev. Oct. 11, 2017) details why a state government, in this case the State of Nevada, has a right to intervene to stop what it regards as abusive serial ADA litigation. This has already happened, with considerable success, in Arizona.* The real player on the plaintiff’s side, as in earlier cases in Arizona and Colorado, is an outfit called Litigation and Management Services, LLC that finances serial ADA litigation by paying local plaintiffs and lawyers while keeping the lion’s share of any settlement. As is the case with serial litigants generally, their strategy is to keep the settlements small enough that individual defendants will settle rather than fight. With no effective response from Congress, this kind of state action is really the only way to stop this kind of abuse of the ADA.
On the ADA and FHA news front our Google feed has, for the last couple of months, consisted of a 50/50 mix of articles either (a) condemning pending efforts in Congress to reduce serial litigation by imposing a pre-filing notice requirement or (b) reporting on a string of lawsuits filed by a single plaintiff in a town or neighborhood whose businesses are up in arms. This mix shows the fundamental problems with ADA enforcement in the U.S.. Because Congress has never funded any significant outreach to small business concerning ADA compliance it continues to be easy for serial filers to locate accessible parking and other violations that are easy to fix and probably shouldn’t exist in the first place. For the same reason, the disability rights community has come to see serial litigation as the only means of achieving the goals of the ADA, and its more vocal members see any effort to reduce even the most abusive serial litigation as a threat to ADA enforcement generally. It is past time for Congress to re-think the entire enforcement model for disabilities rights. The disabled shouldn’t have to rely on barratry to increase accessibility, and businesses should not be blindsided with a highly technical regulation whose application is often a complete surprise.