ADA and FHA Defense

    • Two blogs for the price of one

      My partner, Jeanne Huey, just published her blog “The Stakes Just Got Higher: Texas Legislataure Cracks down on Barratry.” Barratry is, of course, stirring up unnecessary litigation or, more particularly, doing one of several things that have been made a crime and/or ethical violation in most states. These include:

      • paying a client to hire a lawyer
      • soliciting clients in ways that are not allowed by local advertising regulations
      • lying to clients to get them to hire a lawyer.

      As Jeanne points out, the civil penalties for barratry have just gotten higher in Texas as the legislature tries to rein in “ambulance chasers” and other forms of illegally getting clients and creating lawsuits.

      This is a blog about the ADA and FHA, not legal ethics and barratry, so you may wonder why I’m mentioning Jeanne’s blog here. As it turns out, barratry has always been lurking in the background of industrial scale ADA litigation, something I’ve noted several times over the last decade:

      Under Title III of the ADA a winning plaintiff gets no money – just an order telling the defendant to stop violating the ADA. The winning lawyer, on the other hand, gets his fees paid. When a lawyer files dozens or hundreds of lawsuits for a single plaintiff and only the lawyer stands to profit, it is reasonable to ask whether the plaintiff is being paid by the lawyer to allow their name to be used for the lawyer’s benefit. If the lawyer is paying the plaintiff, even if that payment is a split of a settlement, the arrangement may very well constitute illegal barratry.

      And that is why Jeanne’s blog should matters in the ADA and FHA world. If you or your client have been sued by a serial plaintiff represented by a law firm that files a large number of cookie cutter cases it is worthwhile to consider how the laws against barratry may apply to the lawyers who filed the case.


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    • ADA website litigation – up, down or sideways?

      What can be made of this assortment of information concerning ADA litigation over website accessibility?

      May 2025 website accessibility litigation – 445 new cases, 123 of which against previous defendants and 119 against websites using some form of widget that supposedly improves accessibility.¹

      May 2025 headline “Federal Trade Commission Orders accessiBe to Pay $1M For Misleading Claims Relating to Automated Website Accessibility Remediation Tool”²

      Another May 2025 headline: “New York Federal Courts Are Not Rolling Out the Welcome Mat for Serial Plaintiffs in Website Accessibility Lawsuits Anymore”³

      December 2024 headline: “Websites Are Not Places of Public Accommodation Subject to Title III of the ADA, Federal Court in New York Rules” (4)

      June 2023 headline: “Lawsuits over disabled Americans’ access to websites have surged.” (5)

      The first thing you might note is that the last headline is just at two years old. It was, however, at the top of Google search hits for “ADA Website Litigation.”  If you are looking at the internet for information about the changing litigation landscape you have to be careful about your sources.  I blogged about DOJ’s new Title II website regulations when they were finally adopted last April (6) but it was barely news since they had been proposed years earlier and more or less copied WCAG 2.1, the private accessibility standard that litigants and courts have used for years.

      As for the first and third headlines, a new decision from a federal district judge is always interesting, but New York federal courts have had mixed views of the application of Title III of the ADA to stand alone internet businesses for years and the old adage “know your judge” hasn’t changed as the key piece of information for any defendant.(7)

      The accessiBe fine from the FTC is news because, as the Usablenet article cited above shows, at least 25% of new filings in May were against businesses supposedly protected by a widget of some kind. The real news is, however, that it has taken the FTC many years to figure out what the accessibility community knew long ago; that is, widgets and similar tools that claim to completely automate website accessibility only work in a limited fashion. (8)

      So then, has there been progress in either making the internet more accessible for the blind or making the courts less dangerous for online businesses? As to the first, there certainly has as the largest companies have invested in accessibility and  many more developers now emphasize accessibility both in design and remediation of websites (9). As for the latter I think the answer is no. The law firms who file website accessibility lawsuits have proven they can easily pivot from one venue to another when a court or courts seem unfavorable.(10) In terms of litigation we are going sideways and the eternal truths about industrial ADA litigation remain:

      • The law firms that file the lawsuits do not care about practical accessibility; that is, whether a disabled person can use the website, but instead look for technical violations of the WCAG 2.x standards as a justification for a lawsuit.
      • Too many internet business operators still do not care about accessibility, and too many others have placed an unjustified reliance on a widget or similar tool because they do not understand what accessibility means.
      • It is still difficult for small internet businesses to create and maintain accessible websites in a cost effective manner because the available development and testing tools cost too much or are not used at all. You can still create your own e-commerce website, but it probably won’t meet WCAG 2.x standards.

      This means we still need what we have needed for years; that is, (a) some way to both identify tester standing issues and dispose of tester cases quickly and inexpensively, (b) more education for small businesses on what accessibility means, (c) better development tools, especially those that would insure accessibility for template placed website design products like WordPress, SquareSpace and others, (d) a new Title III regulation that is based not on compliance with a complex technical standard, but instead on the practical usability of a website, and finally, (e) a pleading standard that requires the identification and description of specific accessibility problems as a prerequisite to the continuation of a lawsuit (11). There has been lots of motion, but little progress in accessibility for the many small online businesses and even less is dealing with industrial scale ADA website litigation. Up, down or sideways? Sideways is, I’m afraid, the answer.

      ++++++++++++++++++++++++++++++

      ¹ These figures taken from Usablenet’s monthly tracker at Usablenet Website Tracker

      ² See  FTC Press Release for the original report from the FTC and Seyfarth Shaw Article for the quoted headline.

      ³ See Seyfarth Shaw Article 2 for the quoted headline.

      (4) See Ogletree Deakins Article

      (5) See, The Economist Article

      (6) See, ADA Title II website regulations – does anyone have a better idea?

      (7) See my blog from December 13, 2022 – “Quick Hits, Happy Holidays Edition” – for a useful analysis from one of those federal judges:

      The sheer number of judges who, when presented with this statute, have diverged in their interpretations, tells this court that the plain language of Title III of the ADA is ambiguous as to whether standalone websites are covered entities under the statute.

      Martinez v. Gutsy LLC., 2022 WL 17303830, at *3 (E.D.N.Y. Nov. 29, 2022).
      (8) See my blog “Quick Hits, Who Needs the Grinch” for a December 2021 opinion on this subject from Judge Ramos of the Southern District of New York, and the 2021 statement concerning accessiBe from the National Federation for the Blind. National Convention Sponsorship Statement Regarding accessiBe

      (9) I can’t endorse any developer because I’m a lawyer and I don’t have the technical expertise to judge their work. I can say I had a great time working with Equalize Digital on their podcast earlier this year (Equalize Digital Podcast) as I have with long established accessibility specialists like Usablenet and more recent entrants into the field like Access Design Studio. I can email anyone who is interested a list of those with whom I have some familiarity.

      (10) For example, now that the Third Circuit’s view of Title III has been adopted by federal courts in the Western District of Pennsylvania, hundreds of lawsuits have been filed in Pennsylvania state courts under Pennsylvania’s ADA equivalent state law. The same has happened in New York and California. The results have been mixed, but one reason statistics about ADA website litigation differ from source to source is that some include state court litigation while others don’t.

      (11) It would be a radical change, but for years federal courts have referred lawsuits that are likely to fail from pro se litigants like prisoners to magistrate judges who screen them to weed out the meritless cases before the defendants are required to spend thousands of dollars on defense. Doing the same for serial ADA filers would at least limit the use of ADA lawsuits as a means of making a quick buck from the threat of litigation against defendants who can’t afford the considerable expense of litigation.


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    • “Toddler mauled by service dog” – the cost of thoughtless disability letters.

      The headline was all too familiar, “Toddler mauled by service dog.” We have seen it before when untrained animals were allowed on airlines or in other public places.(6) When it is passenger passing off a peacock as an emotional support bird it is funny. When it is a child who may be disfigured for life nobody’s laughing. But all these stories share two things in common: First, of course, some adult who should have known better decided to take advantage of federal law, usually the ADA, FHA or Air Carrier Access Act. They thought it would be nice if they could take their pet everywhere, and so they claimed to have anxiety, depression or some other mental condition, claimed to have trained service dog, and then found a medical professional willing to write a letter. The second thing these stories have in common is the medical professional or healthcare provider; maybe a doctor, but more likely a  therapist or social worker willing to write a letter certifying the animal as a service animal without bothering to properly diagnose the existence of a disabling mental disorder or asking about the supposed training of the “service dog.”

      In the recent case of Leibman v. Waldroup, No. 23-0317, 2025 WL 1610583. (Tex. June 6, 2025) the doctor was a gynecologist. The holding from the Texas Supreme Court was narrow, but very important for anyone, including landlords, business owners and individuals who have been victimized by service animal or ESA verifications that never should have been written in the first place.

      The case began when the defendant, Dr. Maurice Leibman, wrote a letter for his patient Julia Romano, certifying that she was disabled by anxiety and that her dog was a service dog. With that letter any restaurant or other public place would be required by the ADA to allow her to bring her dog.  That included the restaurant where the Waldroups were dining with their infant daughter. The dog attacked the infant, severely injuring her. The Waldroups sued the restaurant, the owner and, importantly, Dr. Leibman, but it is only Dr. Liebman’s case that came to the Supreme Court. The Texas Supreme Court addressed two questions. First, was there a sufficient connection between Dr. Liebman’s letter and the attack for there to be any claim at all. The second was whether the claim against Dr. Liebman was a medical malpractice claim; that is, a claim that Dr. Liebman failed to meet the appropriate standard of care for a doctor engaged in medical practice. Under Texas law claims of medical malpractice cannot be filed without a timely file expert report stating that the doctor failed to meet his standard of care.  The Waldroups did not file such a report and their claims against Dr. Liebman had been dismissed in lower courts. To sue Dr. Liebman they had to show that what he did was something other than medical malpractice.

      The Supreme Court’s answer to the first question was “yes,” because the injury to the Waldroup’s daughter might be fairly  traced to Dr. Liebman’s letter. The Court observed that the Waldroups will still be required to prove the letter was in fact a cause of their daughter’s injury. Nonetheless, the holding opens to door and allows them to try to prove the letter caused the injury.

      The Supreme Court’s second holding requires more discussion. Deciding whether the Texas law requiring an expert report applies in this case depends, according to the court, on whether when he wrote the letter Dr. Liebman was engaged in the diagnosis or treatment of a mental disease or physical disorder. The Supreme Court says this about the Waldroups’ claims:

      Their claims focus solely on Dr. Leibman’s letters and his alleged failure to determine whether Romano’s dog really was a properly trained service animal with appropriate public behavior.
      Equally important is what their claims were not. The Waldroups did not claim that Dr. Liebman had misdiagnosed Ms. Romano or that he had mistakenly said a service dog would help help. What he had done was tell the world, through his letter, that the dog had the characteristics of a service dog, including being trained to behave in public places.¹ The letter was not wrong because of failure of medical diagnosis, but because it implicitly said something Dr. Liebman did not know; that is, that the dog was safe around strangers.
      The Supreme Court emphasized that the Waldroups have a long way to go before they can tie Dr. Liebman’s letter to their daughter’s injuries, but the holding is still important.² It should remind medical professionals that just doing what their client or patient asks may not just be doing them a harmless favor, because the letter they write amounts to claiming they know something they probably do not know; that is, that the dog is not dangerous. A health care provider who writes a letter knowing it will allow their patient to take a dog into stores and restaurants has assumed some responsibility for the behavior of that dog.  This gives businesses, landlords and direct victims of fake service dog letters a possible remedy and creates a threat that might make medical professionals think twice about carelessly writing an ESA or service dog letter.
      There is, of course, more to be said about this case, and that requires a diversion to a recent decision from the Louisiana State Board of Social Work Examiners. In File #2024-33 concerning Melissa Montrose, a licensed clinical social worker, the Board issued (by consent) a reprimand, fines amounting to more than $2000, requirements for additional professional education, and reporting requirements to the Board. What did Ms. Montrose do to deserve this? She wrote a letter certifying that her client was disabled and needed an emotional support dog. She did this on the basis of a 15 minute telehealth consultation and answers to some screening questions. She did not try to gather any information about her client’s background, family, work, or medical history. She did not prescribe any treatment other than an emotional support dog. Even social workers have to do more than that before they give their professional opinion that their client needs something. By failing to fulfill her professional responsibilities Montrose violated Louisiana laws concerning the standards of practice for social workers.
      There is a pretty large gap in training and qualifications between a social worker who sells ESA letters in Louisiana and a licensed MD in Texas, but the similarity is clear. Even though it was not an issue in Liebman, when a healthcare provider writes a service dog letter or ESA letter they are engaged in professional practice and obligated to meet the standards of that practice. It is worth asking whether before writing Ms. Romano’s service dog letter Dr. Liebman did what a medical doctor would ordinarily do.  Did he conduct a proper forensic examination to determine that Ms. Romano suffered from anxiety that met the statutory definition of “disability” under the ADA or FHA?³ Did he ask whether the dog had been individually trained to perform a specific task related to Ms. Romano’s anxiety and if so just what that task might have been? Did he do any research in the effectiveness of psychiatric service animals for helping those suffering from a disabling level of anxiety? In short, did he do any of the things he would have done before trying to diagnose and treat any gynecological disorder? We don’t know, but I would be surprised if he did.(4)
      The specific legal posture of this case means we will probably never learn whether Dr. Liebman engaged in medical malpractice when he wrote the letter for Ms. Romano, but the Montrose case from Louisiana is a reminder that for every kind of healthcare provider from MD to social worker that writing letters claiming their client or patient has a disabling level of some mental disorder and that requires a service dog or emotional support animal must be approached with the same level of care that they approach any other part of their practice.  A healthcare provider who diagnoses a disability has a duty to conduct a professional examination to determine whether their patient suffers from a mental health disorder, to understand the legal definition of “disability” before claiming their client meets that definition, and to understand the use of service animals and emotional support animals in exactly the same way they understand the use of any drug or surgical treatment before they recommend it. A doctor should not prescribe a service dog any more lightly than they would prescribe a narcotic, because both can be dangerous to the patient and others. A therapist should not prescribe a service dog any more lightly than they would prescribe any course of treatment for a serious mental illness because prescriptions of this kind have effects in the real world that can include anything from a child disfigured by an dog’s attack to loss of a license to practice.(5) ESA and service dog letters are not just good business, they are also serious business.
      ++++++++++++++++++++++
      ¹ There is no explicit requirement in the Americans with Disabilities Act that service dogs have such training.  The relevant regulation, 28 CFR §36.104 requires that a service dog be “individually trained to do work or perform tasks for the benefit of an individual with a disability.” It says nothing about behavior. However, a service dog could not do its job, whatever that might be, if it were constantly reacting to, let alone attacking, strangers. Thus, all genuine service dogs are trained to behave well around other people.
      ² The published opinion is still not final and four of the nine judges dissented, so the outcome remains a little uncertain.
      ³ Ms Romano originally sought the letter from Dr. Liebman because she wanted to keep her dog in her apartment. For this the applicable law is Section 3604(f)(3)(B) of the Fair Housing Act. Taking the dog into a public place like a restaurant is the domain of Section 12182(b)(2)(A)(ii) of the Americans with Disabilities Act. The definitions of “handicap” under the FHA and “disability” under the ADA are not the same, and by writing the letter Dr. Liebman claimed, implicitly if not explicitly, that he was familiar with these statutory definitions and the related regulations.
      (4) If Dr. Liebman did the research he might have found the 2022 study finding no significant difference in mental well being between patients who had a psychiatric service dog and those who did not. Katlyn Morales, The Differences in Mental Well-Being for Individuals With and Without Service Dogs,  August 2022, available at service dog article. There do not appear to be any peer reviewed studies that demonstrate the effectiveness of psychiatric service dogs, and if anyone who reads this knows of any I would love to hear more about them. What we seem to have instead is many studies where people who already own dogs tell the researchers how much they like them. These all suggest that people who like their dogs feel better when their dogs are around. What a surprise.
      (5) It is worth asking whether Ms. Montrose would have gotten off with a reprimand and fine if the ESA she prescribed had severely injured a child.
      (6) I first learned of the case discussed below from William Goren’s 2023 blog about the court of appeals opinion, which you can read at “Goren Blog.” My earlier blogs on related topics can be found at – Science v. HUD – science and business are the losers., HUD’s new Guidance on assistance animals will encourage emotional support animal fraud., and HUD gets it wrong again on emotional support animals – two is one too many.

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    • Source-of-income discrimination under the FHA

      That title is a little misleading because, in fact, the federal Fair Housing Act does not prohibit source-of-income discrimination.¹ I noted just this morning a case from Maryland² discussing a specific issue related to source-of-income discrimination and thought this was a good reason to take a brief look at source-of-income laws.

      I have to start by noting that the Poverty and Race Research Action Council is the source for my information on these laws because they conduct an annual survey of state and local source-of-income discrimination laws.³ Not all of these laws are created equal. In Texas, for example, the law concerning source of income discrimination forbids such laws, part of an effort by a conservative legislature to keep more liberal cities from passing such laws. The Wisconsin law has been interpreted to exclude Section 8 housing vouchers, which may be the most common kind of rental assistance, and as the PRRAC notes, other state laws have been weakened by interpretation as well.

      This kind of weakening (or merely interpreting, depending on your attitude) is what the Maryland Supreme Court is considering in Katrina Hare v. David S. Brown Enterprises, Ltd. The landlord in that case had an income qualification rule that permitted the rent to be no more than 40% of the tenant’s total income. The tenant, who lived on social security, had income of only around $800 a month, but had a housing voucher for about $1400 a month. Even counting the voucher as income, her total rent was far more than 40% of her income; in fact it was around 70% of her income because most of her income was assistance to pay rent. Her share of the rent, a few hundred dollars, was far less than 40% of her income even without rent assistance, but comparing the full rent to all her income meant she didn’t meet the landlord’s requirements.

      The landlord’s position was a simple “look at the words of the statute” argument. As written, the statute requires a landlord to treat a rent voucher as income and forbids discrimination based on source of income. The landlord claimed that it treated her voucher as income when calculating total income for its 40% rule and thus did not discriminate. The tenant’s position was practical. Tenants who get rental assistance usually have income that is far less than the rent they have to pay. If you add rent assistance that is equal to most of the rent to their existing income and do the landlord’s calculation the tenant will almost never qualify to rent the apartment for which they are getting assistance. Thus, the “look at the words of the statute” argument leads to the absurd result that landlords can still, in effect, discriminate based on source of income.

      I won’t guess how the Maryland Supreme Court is going to rule in this case, but it illustrates an important point for landlords and developers who are concerned about the administrative burden of accepting vouchers but do not want to violate source-of-income discrimination laws. You cannot just look at the PRRAC list and conclude that in the listed states and cities you must accept housing vouchers or, using the landlord’s argument in Maryland, assume you’ll be able to reject tenants with vouchers. The exact language of the law matters as do court decisions interpreting the law. Legislatures and city councils can learn the same lesson because if the goal is to require that landlords to accept housing vouchers and other rental assistance it may not be enough to simply outlaw source-of-income discrimination as the Maryland legislature has done.

      And as a final note, this is a more general problem with anti-discrimination laws. Everyone thinks they know what it means to say “thou shalt not discriminate” based on this or that, but not everyone “knows” the same thing. There is no easy statutory or regulatory path to achieving the goal of equal housing opportunity for all while at the same time not unduly burdening housing providers. There is also no easy way for landlords to be sure that because their motives are good they are doing what the law requires. If you are doing business in a jurisdiction on the PRRAC list an investment in closely examining the local source of income law will almost always pay off in the long run.

      ++++++++++++++++++++++++++++++

      ¹ Source of income discrimination occurs when a landlord refuses to accept rent vouchers or similar third-party sources of income when evaluating the tenant’s financial ability to pay rent or, in some cases, simply refuses to accept rent payments from certain third parties, usually a government agency or a charity of some kind. It is never mentioned in the federal Fair Housing Act although it is forbidden by regulation for certain federally subsidized housing programs.

      ² See, Source of Income lawsuit

      3 See, PRRAC Source of Income Survey

      4 What, you don’t agree?


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    • Fighting fire with fire – is litigation the solution for serial ADA filings?

      ADA serial filers and their lawyers are not popular with the businesses they target, as illustrated very clearly by the recently filed  Baek Family Partnership, LLC et al v. Wampler, Carroll, Wilson & Sanderson PLLC et al, Case No. 3:25-cv-00584 (D. Or.). But before discussing that case, I’d like to look at past attempts to use litigation against ADA serial filers and their lawyers.

      The earliest such lawsuit, Saniefar v. Moore et al, Case No. 1:17-cv-00823 (E.D. Cal.), settled in 2020 after the plaintiff won some preliminary discovery battles. The defendant serial filer, Ronald Moore, seems to have cut back on his filings in California after the settlement, but it seems he has continued to file lawsuits in other states, with at least 50 or 60 filings in Florida and New Jersey. This illustrates a basic point about serial ADA litigation – it is really just one kind of industrial litigation based on a high volume of lawsuits filed with the intent to get an early settlement. I have always believed that ADA serial litigation developed after tort reform legislation and restrictions on class actions made other forms of industrial litigation harder to pursue. If the serial filers can’t pursue ADA claims they will turn elsewhere because there are plenty of laws amenable to this kind of litigation.³

      In Neal v. Second Sole of Youngstown, Inc., 2018 WL 340142 (N.D. Ohio Jan. 9, 2018) a racketeering counterclaim against a serial filer was dismissed for failing to state a claim.¹ There may be lessons here for the latest plaintiffs using the RICO statute as a weapon against serial filers.

      In another 2018 decision,  Deutsch v. Annis Enterprises, Inc., 882 F.3d 169 (5th Cir. 2018) the Fifth Circuit upheld district court sanctions against an ADA serial filer and his attorney. It is an interesting case, but the conduct was so egregious there is little to learn that is of use for most ADA defendants (or plaintiffs for that matter).

      The same is true of Johnson v. Ocaris Management Group, Inc., Case No. 1:18-cv-24586 (S.D. Fla. August 23, 2019), The ADA serial plaintiff and his lawyers were sanctioned for filing a frivolous claim. This seems to have slowed them down, for the attorney, Scott Dinin, was suspended from practice for 18 months and then notified the Florida Supreme Court he was no longer practicing law. He doesn’t seem to have filed any ADA cases after 2019 although his bar profile shows he is now in good standing.  In any event, Mr. Dinin’s problems did not slow the rate of ADA filings in Florida, with other lawyers and plaintiffs continuing to file industrial scale ADA litigation.

      Ghandi et al v. Ehrlich et al, Case No. 1:19-cv-03511 (N.D. Georgia) was filed in 2019 against a serial filer and his attorneys. The case was dismissed and the plaintiffs were sanctioned when they failed to come up with any evidence to support their claims. This is a perfect example of my belief that outrage is no substitute for a good defense.(4)

      In 2022 local district attorneys tried another tack in the highly publicized The People v. Potter Handy LLP, Case No. A166490 (Cal. App.). This was an attempt to attack serial filing firm Potter Handy using California unfair business practices statutes. The effort failed when the case was dismissed based on the “litigation privilege.” This is a privilege that protects people who file lawsuits from responsive lawsuits that allege the underlying cases were false or misleading. Lying in a court filing might lead to sanctions by the court in which the suit is filed, but it won’t generally give rise to claims that can support a separate lawsuit.

      Late last year, in Jimenez v. Senior Exch., Inc., No. 23-CV-323 (ALC) (JW), 2024 WL 1833808, at *8 (S.D.N.Y. Apr. 26, 2024) the plaintiff’s law firm was sanctioned a whopping $500, not for filing an improper claim, but for making a disingenuous excuse for dismissing the lawsuit to (apparently) avoid an unfavorable ruling on standing to sue. This has predictably had no effect on the firm’s continued ADA filings. It is rare for federal judges to impose a sanction that goes beyond the single incident before them. No matter what this judge might have thought about the plaintiff or his lawyers, the only real issue was a misleading court filing that didn’t really change the outcome.

      This is not a comprehensive list, but in general efforts to sanction ADA serial plaintiffs and their attorneys have not been notably successful. That is why the number of ADA filings fluctuates over time, but within a pretty stable range of between five and ten thousand federal cases each year. Industrial litigation is profitable and sanctions like those in Jimenez are just a cost of doing business.

      This brings us to Baek Family Partnership, LLC et al v. Wampler, Carroll, Wilson & Sanderson PLLC et al, Case No. 3:25-cv-00584 (D. Or.). The Complaint alleges a broad conspiracy to file meritless ADA claims including 4000 or more demand letters and lawsuits in more than 15 states. Whether the allegations are true will no doubt be determined in court, but the central claims are:

      • The plaintiffs did not have standing to sue, and allegations supporting their standing to sue were knowing misrepresentations to the various courts and
      • The plaintiffs filed fraudulent in forma pauperis claims to avoid paying filing fees and other court costs.

      Because this and other misconduct involved allegedly illegal fraudulent conduct it added up to a violation of the RICO statute, which defines racketeering to include a conspiracy to violate various federal laws that make different kinds of fraud illegal.

      The case is in what might best be called the “press release” phase; that is, the case has been filed and the plaintiffs have publicized it. The defendants have responded by claiming the lawsuit is frivolous and threatening to seek sanctions, but have not yet filed an answer of any kind. Where the case will go is anybody’s guess, but it does differ from the earlier efforts of this kind in the specificity of the allegations, for it names what it calls the “Fake Testers” and identifies specifically the allegedly fraudulent filings they and their attorneys made. Many earlier efforts of this kind relied on the argument that anyone who files a lot of ADA lawsuits must be lying about their motives, a presumption courts have not been willing to adopt. This filing seems far more specific.

      Looking back at this and other cases I find it peculiar, in some respects, that none considera claim of barratry; that is, lawyers creating litigation rather than waiting for litigation to come to them. Barratry is an ancient offense, and what it means today depends on local criminal statutes, attorney ethics rules and in some cases statutes creating a civil penalty. Despite those variations, the general principle is the same; lawyers who accept lawsuits from individuals who already have a claim are doing nothing wrong, even if they advertise to find such individuals. Lawyers who instead pay individuals who have no claim to go out and find a claim are engaged in barratry. When a single law firm files dozens or hundreds of lawsuits on behalf of a client who cannot financially benefit from a victory in court there has to be some question about who is really in charge. The law firm will certainly benefit if the suit is won, but there is nothing in it for the plaintiff unless the case settles and some of the settlement money goes to the plaintiff.² If settlement money goes to the plaintiff, it is reasonable to ask why and, more important, who decides? Is it a case of the plaintiff hiring the lawyer, or the lawyer hiring the plaintiff? (5)

      I found only one mention of barratry in an ADA case. In Assn. for Disabled Americans, Inc. v. Integra Resort Mgt., Inc., 385 F. Supp. 2d 1272 (M.D. Fla. 2005) a clearly disgusted federal judge strongly suggested that the plaintiff’s lawyers might be guilty of barratry and that despite a seeming victory they should get no fees. However, because the fees were stipulated by the defendants the judge was compelled to award them. That kind of stipulation is the foundation of serial ADA litigation. Plaintiffs, or their lawyers (you choose) file suit intending to settle for just a little less than it costs to mount a real defense. Thus, it never makes economic sense for the defendants to fight because they can escape the costs of litigation with a relatively small payment to the plaintiff’s attorneys. It remains to be seen whether Baek Family Partnership, LLC et al v. Wampler, Carroll, Wilson & Sanderson PLLC changes how industrial ADA litigation is conducted, but my guess is that the business model – filing lots of lawsuits and settling for small amounts – will not go away and that at most Baek Family Partnership will make plaintiff’s attorneys more cautious about how they find clients and what kind of deal they make with them.

      +++++++++++++++++++++++++++++++++++++++++

      ¹ See my blog at Polar Vortex

      ² Under Title III of the ADA a plaintiff can obtain an injunction to stop future ADA violations, but is not entitled to damages or any other financial reward. The plaintiff’s lawyers, on the other hand, are entitled to legal fees.

      ³ See my 2013 blog, Curb cuts and accessible parking. We have seen the same kind of litigation involving spam faxes and improper telemarketing calls to cell phone numbers. As long as the settlement amounts are modest the defendants treat it as a cost of doing business and continue their old practices. The difference in ADA cases is that the defendants are often small businesses and even a modest settlement is enough to make the business unprofitable.

      (4) After you finish this blog just search for “outrage” in my earlier posts, including Standing for serial plaintiffs.

      (5) Almost all ADA lawsuits are filed by testers, and courts recognize that groups with an interest in disability rights may engage in “testing” by having plaintiffs go look for violations. Similarly, and individual can decide to be a “tester” and go looking for lawsuits. These practices raise questions about standing to sue, but they are not barratry. Barratry occurs when the lawyer is the driving force behind the lawsuit, and especially when the lawyer pays someone to go out an suffer an injury that the lawyer can sue on.


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    Richard Hunt, author