The following link is to a story on ABC 15, Arizona concerning the latest developments in the ongoing investigation of abusive ADA litigation in Arizona and New Mexico. Local Judge Orders Release. The article explains the situation in some detail, but the basic news is simple. A private company hired lawyers and plaintiffs to file ADA lawsuits, paying for their services and pocketing what looks like a substantial profit. None of this might have ever come to light except that the number of suits (in the thousands) was astonishing even by ADA serial litigation standards.
For both disabilities advocates and firms like ours that defend ADA lawsuits this kind of report poses a critical question: Is this the norm, or an aberration? When we see dozens or hundreds of ADA suits filed in a short time by a single firm and plaintiff are we seeing a legitimate effort to create an accessible world or exploitation of a law for purely private benefit?
In most cases the answer is simple exploitation. What happened in Arizona and New Mexico is particularly shocking because the enterprise behind the lawsuits wasn’t even doing to filing – it subcontracted out the jobs of both plaintiff and lawyer. However, even legitimate non-profit disabilities rights organizations use litigation to make money, and a review of public financial records will show that in many cases the litigation enterprise mostly generates money that pays lawyers to file more lawsuits.
Despite the flurry of news reports whenever a new serial filer hits town this kind of ADA litigation has been going on for almost as long as the law has been in effect. Tens of thousands of lawsuits have been filed, and the pace of filing has only increased in recent years. Private lawsuits were supposed to make our society more accessible to those with disabilities, but time has proven the system is a wasteful failure. In the most common types of ADA cases the legal fees will be three to four times the cost of fixing any real problem, and in California they may be ten times the cost, and at the end of the day all that has been accomplished is a re-striped accessible parking spot with the sign moved up 10 inches and a business community that views disability rights as a scam that just makes money for lawyers. There is no more inefficient or ineffective means to advance a public policy than to put it the hands of litigators, and the history of ADA litigation proves it.
Congress is working on legislation aimed at cutting down on serial filing, but none of the pending bills create any kind of real alternative for improving accessibility. Even provisions for business education are unfunded and therefore meaningless. If there is a solution, it will have to come from private organizations concerned with accessibility who are willing to replace litigation with creative new programs that help businesses become accessible without spending most of the money on lawyers.
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA Internet, ADA Internet Web, ADA Litigation Procedure Tags: ada litigation, ADA settlement, ADA website, Carlson Lynch, Judge Schwab
We’ve written before about the perils of private ADA settlements. The yin and yang of ADA defense. Perilous settlements and temporary victories, and Starbucks and the ADA – more perilous settlements and temporary victories. explain how an ADA settlement can cost plenty and do nothing. The problem is simple. If you settle one case, but have not brought your business into ADA compliance, you are at risk for another case, and another, and another. That risk came home to roost for the defendant in Gniewkowski v. Party City Holdco, Inc., Case No. 2:16-cv-1686 (W.D. Penn.). In a decision issued on January 27 Judge Schwab, who has perhaps more experience in web access cases than any other federal judge thanks to the prolific filings of the Carlson Lynch firm, denied a motion for summary judgment based on the settlement of a web access case from Florida. Party City Holdco appears to be on its way to paying twice to settle the same website accessibility claim. More
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA Litigation Procedure Tags: ADA drive-by litigation, ada litigation, Arizona Attorney General, serial litigation
The intervention of the Arizona Attorney General in more than a thousand cases filed under Arizona’s ADA equivalent has been big news for some time in the ADA litigation world. (see our blog, Arizona Attorney General Intervenes to stop abusive ADA litigation) Now, according to the latest news stories (click here), the Attorney General will seek to have the entire group of cases dismissed on standing grounds. The result is still uncertain, but reports that the plaintiff never visited most of the locations sued seem to point toward a decision favorable to the State.** More
“First Fix, Then Fight” has been this blog’s slogan and trademark from the beginning. This isn’t based on a philosophical opposition to litigation, which is sometimes unavoidable, but on a hard headed assessment of the economics of ADA litigation and the difficulty in winning in the early stages of a case. Last week’s decision in Burrell v. Akinola, 2016 WL 3523781 (N.D. Tex. June 27, 2016) demonstrates why first fix, then fight has to be the foundation for ADA defense.
In Akinola the plaintiff sued the defendant for various violations of the ADA. The allegations of violations were not very specific, and the allegations related to the plaintiff’s standing were also somewhat general. Of course a dismissal based on pleading standards or standing is very hard to obtain, and perhaps with this in mind the defendant chose to attack whether there was any allegation of discrimination at all; that is, had Burrell alleged a violation of the statute. More