serial litigation

ADA Standing “when the truth don’t lie.”

By in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA Litigation Procedure Tags: , , , , ,

Francis Bacon2“‘What is truth?’ said jesting Pilate, and would not stay for an answer.” These words from Francis Bacon’s famous essay on truth often seem to apply in the earliest part of an ADA lawsuit. Truth is important, but takes a back seat to procedure.  In Gastelum v. Canyon Hospitality. LLC, CV-17-02792-PHX-GMS, 2018 WL 2388047 (D. Ariz. May 25, 2018) the Court found a way to get to the truth early in the case, before the cost of litigation made it irrelevant.

The plaintiff is a serial filer associated with Phoenix attorney Peter Strojnik, who has a long history of mass ADA filings. According to the Court, Mr. Strojnik and Mr. Gastelum are engaged in a joint enterprise to sue local hotels “without reference to whether Mr. Gastelum actually had any intent to make future visits to those facilities for reasons not related to his pursuit of ADA claims against them.” That enterprise sued more than 125 different Phoenix area hotels in a matter of months. More


Share

Getting real – a step in the right direction for ADA claims

By in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, FHA Tags: , , , ,

Get RealThe usual elements of a complaint filed under the FHA and ADA are:

  • A lengthy and unnecessary recital of the legislative history of the law, including all kinds of statements about the historical oppression of those with disabilities,
  • A broad allegation that the plaintiff visited the defendant’s location, without details that might make the claim verifiable, and
  • A series of broad statements about violations of the law that, once again, lack any detail that would make them verifiable.

More


Share

Consolidate and (maybe) eliminate – a new strategy against ADA serial litigants

By in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA Litigation Procedure Tags: , , ,

garbage truckTwo recent cases, one handled by the authors of this blog, illustrate how a strategy of consolidation may make it possible to economically get rid of serial ADA filings where standing is an issue.

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


Share

Arizona Attorney General Intervenes to stop abusive ADA litigation

By in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation Tags: , , , ,

Screen Shot 2016-04-05 at 12.18.41 PMThis is just a quick note about a major development in the story concerning thousands of lawsuits filed in Arizona by a purported disability rights group. The attorney involved, Peter Strojnik was mentioned in two of my blogs earlier this year. The Economist covers serial ADA litigation – Hunt quoted and Cheap Standing under the ADA. After investigations by the press and local authorities the head of the plaintiff organization has resigned and the Arizona Attorney General has intervened in an effort to shut down the litigation mill. You can read the most recent in a series of stories by Steven Trotten HERE and read the Motion to Intervene HERE. More


Share

Abusive ADA Litigation – the answer is local, not legal

By in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General, Building Codes, DOJ, municipal government, Public Facilities, Restaurants, Retail, Shopping Centers Tags: , , , , ,

chamber-of-commerceTens of millions of dollars are wasted each year on litigation under the Americans with Disabilities Act. The money is wasted because instead of going directly to improvements that make businesses more accessible, the money goes to lawyers. Diverting money from remediation to litigation is the real tragedy of so called “drive-by” lawsuits.
.
Every couple of years Congress tries to fix this problem with legislation that would require notice before the filing of an ADA lawsuit. There are three such bills pending in the current session. The most sophisticated, the ADA Education and Reform Act of 2015 (H.R. 3765), includes provisions that would help educate businesses about their ADA obligations. This kind of legislative effort has always failed in the past, and there seems little reason to think that the current Congress will be able to do anything this time around.
.
When there are a string of local lawsuits state and local government also try get involved, usually with similar efforts to require pre-suit notice.  Of course these efforts fail from the outset because the ADA is a federal law and states cannot interfere with its enforcement mechanism.
.
Can anything be done? Well, the real problem with the various legislative initiatives is that lawsuits feed on the existence of barriers to access. Plaintiffs’ lawyers I have dealt with tell me that even when they send demand letters more than half are simply ignored by businesses that don’t understand the law or their legal obligations. Given this level of ignorance, and the fact that a plaintiff can easily find 30 or 40 ADA violations just driving around for a weekend, merely requiring a pre-suit demand will do little to reduce the number of lawsuits.
.
The ADA Education and Reform Act of 2015 starts to get at this problem with its provisions calling for the development by the DOJ of an education program, but the mandate is not funded, and past efforts by DOJ to educate small businesses have largely failed. Twenty-five years after the passage of the ADA the number of ADA lawsuits continues to climb, which is proof enough that top down education efforts without any funding will never improve ADA compliance or eliminate wasteful litigation.
.
What we need instead is work by local chambers of commerce and municipal governments that focuses not on general education but on finding specific common ADA violations so they can be fixed before lawsuits are filed. The best way to do this is to adopt the same tactics used by serial litigants. With minimal training (see our page on Education for Business) police and employees responsible for code enforcement can spot common accessible parking problems. An official notice, even if not accompanied by the threat of a fine, should be enough to get most businesses to look seriously at ADA compliance. Chambers of Commerce can enlist volunteers to do the same thing. Compliance will come from education, but the education will be local, responding to the real needs of local businesses.
.
This kind of program does not require any kind of extensive ADA training or survey. The reason lawsuits from serial litigants are sometimes referred to as “drive-by” lawsuits is that the plaintiffs literally just drive around looking for non-compliant handicapped parking. If the parking at a business looks good they probably won’t even stop to see whether the rest of the facility is accessible. A business with parking that meets ADA standards will have eliminated most of the risk of a lawsuit and bought itself time for a proper survey and remediation of the interior of the premises.
.
The solution to the waste caused by serial litigation is to eliminate ADA violations, and that can be done most effectively when local governments and local chambers of commerce act directly to find violations and educate business owners about those violations. There is no need to wait for Congress to pass a bill that may be doomed anyway. The answer is local, not legal.

Share