by John Waldo
I’ve reported in the past about what I call disability “trolls” which are law firms and what are essentially professional clients who crank out a massive number of basically identical lawsuits claiming a violation of federal and state disability laws. Although each individual lawsuit may have some merit, their sheer number suggests that the primary motive is to generate money with any benefit for people with disabilities being at best a secondary concern.
This has been a particular problem in California, where a unique interplay of state and federal laws gives plaintiffs a great deal of leverage. In calendar 2021, more than half of all the Americans with Disabilities Act lawsuits in the country were filed in California. A lot of those are what are labeled “drive by” lawsuits where an individual or even somebody working with the individual basically drives by the business — restaurants are far the most frequent targeted — spots what appears to be a violation, files suit and immediately demands a cash settlement, with any remediation being something of an afterthought.
In my view, the model” ADA troll firm is a San Diego-based firm, Potter Handy. In 2021, it cranked out more than 10 lawsuits each and every working day. One attorney at that firm was listed as counsel for an astonishing 2,570 cases in that one year alone. And three quarters of those cases were filed on behalf of three individual plaintiffs. In each case, the complaint alleges that the individual wanted to patronize the business, would have done so but for the violation, and will do so in the future if and when the violation is remedied.
In April, the tables may have been turned. The San Francisco and Los Angeles County district attorneys filed a massive lawsuit against Potter Handy and many of its individual attorneys claiming that the lawsuits they filed were part of a scheme to bilk businesses, and were not aimed at improving access to public life for people with disabilities.
The 58-page complaint is damning. https://www.documentcloud.org/documents/21583011-people-v-potter-handy-llp-et-al-final-complaint. It notes cases in which the plaintiffs claim to have encountered ADA violations at a time when the restaurant was closed for indoor dining. It also expresses considerable skepticism that any of the three so-called “mass filers” would have really wanted to visit multiple restaurants each day, particularly the two of them who live in Los Angeles but filed complaints against San Francisco restaurants. And sadly, the Potter Handy complaints in San Francisco seemed to target small, immigrant-owned businesses; many of these businesses were located in San Francisco’s bustling Chinatown.
The complaint notes that the business’ subject to the complaints were put in a really untenable position. According to the complaint, it would have cost many of them somewhere between $50,000 and $100,000 to defend the case, and that money could not be recouped except in really extraordinary circumstances. So when facing either that cost or a demand for $10,000 and up in settlement, many businesses had no real choice except to pay up.
The complaint asks the court to order Potter Handy and their clients to repay the defendants for the fees they spent. The likely outcome of that would be that the firm would declare bankruptcy and essentially go out of business.
Not surprisingly, this situation has caused what could most charitably be described as a divergence of views among disability rights lawyers. Some feel that targeting Potter Handy targets the disability community in general, or at least the laws on which we rely. I don’t read it that way. At several points throughout, the complaint states that in addition to the unfortunate businesses, people with disabilities and ethical attorneys are also being victimized by the attendant bad publicity.
And that’s what I see as the real damage Potter Handy and other troll firms are doing. By abusing the law, they invite overreaction by courts and legislatures.
In the advocacy work I’ve done for ALDA, including some court cases, we’ve tried scrupulously to avoid those problems. We always ask the other side in advance to fix the problem, and when they do, nobody pays the attorneys anything. If we are either denied or ignored, we don’t take “no” for an answer, and will go to court. When we do that and prevail, the other side pays my fees based on the time involved multiplied by a reasonable hourly rate. But we never, ever get paid anything until the accessibility issue is remedied.
This will be interesting to watch. Something has to be done about the “trolls” before legislatures or courts put us all — not just me but all of you as well — out of business.