Two Views of ADA Lawsuits
By Andrew Meblin, copyright September 10, 2023
Thirty-three year have passed since Congress and President George H. W. Bush created the Americans With Disabilities Act, AKA ADA. As most of us know, the ADA was a response to a new understanding of experiences by disabled people – some mentally, others physically – they encounter as they go about trying to live as normally abled people do.
There were few people opposed to this law that allows lawsuits to be brought against businesses and services that do not provide accommodations that allow disabled people to access their facilities as abled-bodied folks do. In many cases those opposed to the law warned that the civil lawsuit function would encourage and allow abuse of the system. Disability advocates argued that the threat of lawsuits would prompt businesses to correct design deficiencies before would-be-customers had to be turned away due to lack of access.
It turns out, both sides were partially correct; many stores and other businesses made improvements to existing facilities, and new construction projects were designed with access for wheelchair-bound customers and employees to enjoy the same creature comforts the rest of us do. But numerous examples of law firms filing hundreds of allegedly frivolous lawsuits against small businesses can be found with a simple web search.
Arguments before the Supreme Court in the case Acheson Hotels LLC v. Laufer will be heard in less than a month. While some disability access advocates are claiming that the “Disabilities Act is under attack” at SCOTUS, that is hardly the case. At issue here is the ”standing,” the legal right to sue businesses if a disabled person cannot determine through the business’ website the degree to which accommodations for disabled access exist. In other words, if a website doesn’t go into enough detail about access, they could be compelled by the court to add the missing information. But the plaintiff has their legal expenses paid, and as any one with experience in these matters can tell, those can be substantial.
Laufer, and others like her, spend their time locating businesses that have insufficient accommodations for disabled people, and filing suit through attorneys. However, in many cases, the disabled person filing the suit has not attempted to patronize the business, but in some cases taken photographs from the vantage point of a car to establish their evidence. Laufer and another disabled woman, Yvette Pegues, call themselves “testers.” Testers find locations that lack full accommodations for disabled people, in action that is presented as a service to society.
That might seem like a square deal, but the devil is in the details, and according to Scotusblog.com, Laufer and others were represented by Tristan Gillespie, who has filed in excess of 600 lawsuits for them. The ADA allows for the recovery of reasonable attorney fees in such cases, but Gillespie is said to have been claiming legal expenses of $10,000 per law suit with as many as 16 filed in one day. A hundred and sixty thousand dollars a day. As the courts got wise to Gillespie, he dropped dozens of cases to avoid being disciplined by the court for violating legal ethics codes.
Now, Laufer has dropped Gillespie as an attorney, and through her replacement lawyer, has dropped the case against Acheson. But the hotel LLC has invested substantially to have Laufer ruled to lack standing and the company wants its day in court.
In California, over the last two decades, one man – Scott Johnson – has filed hundreds of lawsuits against business in the San Joaquin and Sacramento Valleys. He was notoriously known as a “serial filer,” a term describing one who repeatedly sues in order to collect a settlement from the businesses he’s targeted. *
Some of these violations of ADA code were things like a gravel parking lot at a fruit stand not keeping the painted signage in the disabled parking spots clearly enough as the gravel would shift. A gas station in El Sobrante was sued and forced to install a ramp to allow access to the bathroom. Then, once the plaintiff had been inside the bathroom, he sued because the bathroom was not up to code. Now, no customers are allowed to use the bathroom. For someone who uses the law to compel others to follow the law, Mr. Johnson may be presented as a hypocrite given that he’s pleaded guilty to tax fraud.
Scott Johnson, photo by Paul Kitigaki, Sacramento Bee
According to four women who had worked for Johnson, they had been sent around to business that Johnson had scouted out previously. Since the women were gathering details of the disabled accommodation, not Johnson, he had not been “unable to access the business facilities, because he had not made such an attempt.
This gets us back to the “standing” argument at issue with Laufer. If she had no intention to become a customer of the hotel, why should she be allowed to sue? Now that Acheson Hotels, LLC v. Laufer is approaching its October SCOTUS day, expect to read more about the Americans with Disabilities Acts, and lawsuit abuse, serial filers, and barriers to accommodations.
No one wants disabled people to be kept from facilities due to physical barriers, but the question remains whether “testers” are in it for the altruism or for the money.
* California’s law allows plaintiffs to recover $4000 per suit plus attorney’s fees.
FURTHER READING
Yvette Pegues’ article about “testers”
SCOTUS brief by Acheson Hotels, LLC
Sadly, the ADA has been abused just like Civil rights cases and it has has been a bonanza for lawyers
Judges have been loathe to hold these abuses accountable…
More cause for business to leave California. Interesting case to challenge tort abuse.