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News for the Hospitality Executive |
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ADA Defense Lawyer: A Blast Against Frivolous, Serial ADA Lawsuits in Striking the Right Balance |
| For the most recent update on this topic, click here By Jim Butler and the Global Hospitality Group® Hotel Lawyers | Authors of www.HotelLawBlog.com April 8, 2013 ADA defense lawyer:
Striking the right balance But we have all seen some terrible abuses of this law in the hands of certain plaintiffs and attorneys who literally file dozens of cases. I have a service that follows the filing of ADA complaints, and recently, one lawyer filed 18 cases in one day against various small businesses for purported ADA violations. It seems as if both courts and legislatures are getting fed up with abusive practices by some greedy or overzealous advocates. We recently reported on action by the California legislature in "Finally! Relief from abusive ADA litigation in California?") Today, we want to recognize a recent federal court decision that reflected outrage at abusive plaintiffs and their lawyers which detract from the spirit and noble purpose of the ADA. We think this kind of insight and approach will help to strike a better balance that we believe was the intent of the ADA. Today, my partner
Marty Orlick provides us with a
trenchant summary of the case, including some insightful quotes from
the
court's opinion. Federal court condemns frivolous, serial ADA
litigation Federal Court slams abusive
ADA lawsuits On March 28, 2013, a Federal Judge in the Eastern District of New York excoriated plaintiff Mike Costello's attorneys for filing scores of frivolous ADA lawsuits against mom-and-pop businesses over technical or non-existent deviations from the ADA Standards only to line their own pockets. Costello v. Flatman, LLC, 11-CV-287. Dozens of
"boilerplate" ADA lawsuits The Judge noted that in a boilerplate complaint, Costello alleged that he is disabled, required a wheelchair for mobility, and that he visited a Subway restaurant where he encountered various ADA barriers which prevented him from enjoying the goods and services offered at Subway. The plaintiff was represented by two law firms, one from New York the other from Florida. The Court found that together, these attorneys filed dozens of boilerplate ADA lawsuits alleging very similar barriers only to force the defendants to pay money to settle the cases. Goal of the ADA . . . The ADA contains both a private right of action for individuals and advocacy groups, and a public right of action by the Attorney General. The only remedies for a private individual under the ADA are injunctive relief (barrier removal) and the recovery of attorney's fees and litigation costs. The Department of Justice (DOJ) can also impose fines of $55,000 for the first occurrence and $110, 000 for each subsequent ADA violation. New York (like
California) awards attorneys' fees and damages to plaintiffs Appalled at an abusive
pattern of litigation The Court,
appalled to find a similar litigation
pattern in dozens of lawsuits filed by these attorneys in New York and
Florida
noted that: Some plaintiffs and their
attorneys have found a way to circumvent the will of Congress by
seeking money
damages while retaining federal jurisdiction.
In a highly unusual effort, the Judge visited each of the eight small businesses sued by plaintiff and observed that some of the alleged violations were frivolous. In the Subway complaint, plaintiff alleged that the public bathroom was non-compliant. The Judge observed that there was no public bathroom at all. The Court in an impassioned opinion reduced the attorney's billing rates for filing boilerplate pleadings, found their time entries were excessive (even fictitious) and denied their motion for attorneys' fees and litigation costs. Plaintiff focused on
financial gain rather than the noble intent of the ADA Considering the
spirit and noble intent of the ADA, the
Judge commented: The ADA is a testament to the
country's effort to protect some of its most vulnerable citizens. It is
one of
the most significant federal statutes that was born out of this
nation's Civil
Rights movement and was enacted to ensure that disabled individuals
have equal
and safe access to the same benefits and accommodations as every other
American. However, a troubling reality is that cases like the one
presently
before the court have the effect of being less about ensuring access
for those
with disabilities and more about lining counsel's pockets.
The Court cited a
prominent California ADA lawsuit
Molski v. Mandarin Touch Rest., 347 F. Supp.2d 860 (C.D.Cal. 2004): The scheme is simple: an
unscrupulous law firm sends a disabled individual to as many businesses
as
possible, in order to have him aggressively seek out any and all
violations of
the ADA. Then, rather than simply informing the business of the
violations and
attempting to remedy the matter through conciliation and voluntary
compliance,
a lawsuit is filed, requesting damage awards that would put many of the
targeted establishments out of business. Faced with the specter of
costly
litigation and a potentially fatal judgment against them, most
businesses
quickly settle the matter.
Lawsuits had no effect
on ADA accessibility This is indicative of the
mendacious conduct that is central to counsel's litigation scheme. Plaintiff's attorneys
fees denied Those who take on the honorable
cause of representing disabled individuals must recognize that they not
only
represent their fellow lawyers of the bar, but also the legal giants
who paved
the way for passage of crucial civil rights legislation like the ADA.
The Court concluded with the thoughts of one such Civil Rights legal giant Charles Hamilton Houston, who famously said "a lawyer is either a social engineer or he's a parasite on society." The conduct of counsel is
indicative of a parasite disguised as a social engineer. It must stop. Other ADA defense and
compliance resources This is Jim Butler, author of www.HotelLawBlog.com and hotel lawyer, signing off. We've done more than $60 billion of hotel transactions and have developed innovative solutions to help investors be successful in bidding for hotel acquisitions, and helping investors and lenders to unlock value from troubled hotel transactions. Who's your hotel lawyer? Martin Orlick is a partner in JMBM's Real Estate Department, the Chair of the Firm's ADA Compliance and Defense Group, and a senior member of JMBM's Global Hospitality Group®. Marty has significant experience in representing hospitality industry clients in enterprise wide ADA compliance and defense. He has represented more than 500 businesses in ADA issues, many of them hotels and restaurants, as well as hotel mixed-use properties. In addition to defending lawsuits and governmental investigations, Marty's team of ADA specialists focuses on enterprise-wide ADA compliance including facilities, website and operational compliance. He recently performed an ADA survey of a portfolio of Manhattan hotels. Marty is a member of the American College of Real Estate Lawyers (ACREL) and a frequent speaker on the ADA and other topics. For more information, please contact Marty Orlick at 415.984.9667 or [email protected]. Our Perspective. We
represent hotel lenders,
owners and investors. We have helped our clients find business and
legal
solutions for more than $60 billion of hotel transactions, involving
more than
1,300 properties all over the world. For more information, please
contact Jim
Butler at [email protected] or
+1
(310) 201-3526.
Jim Butler is a founding partner of JMBM, and Chairman of its Global Hospitality Group® and Chinese Investment Group™. Jim is one of the top hospitality attorneys in the world. GOOGLE "hotel lawyer" and you will see why. Jim and his team are more than "just" great hotel lawyers. They are also hospitality consultants and business advisors. They are deal makers. They can help find the right operator or capital provider. |
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Contact: [email protected] 310.201.3526 |
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