This is the second in a four part series on the Americans With Disabilities Act (ADA) and the problems with lawsuit abuse. Part one can be seen here.
The Americans with Disabilities Act (ADA) was passed with overwhelming bipartisan support in 1990 as a “clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” The law provides rules and standards with greater or lesser degrees of specificity – for those of us with limited or no hearing, the law requires many public places to provide “effective communication.”
Crucially, the law permits people with disabilities to enforce those rights by going to court, giving affected individuals a critical tool to ensure they get the accommodations they need to live a fuller life. To make private enforcement possible in that situation, the ADA does permit individuals that prevail to recover attorneys’ fees from the defendant. And that fee-shifting provision is not reciprocal – people who sue to overcome barriers of various sorts do not have to pay the fees of a prevailing defendant.
This arrangement has led to significant gains for millions of people with all manner of disabilities. For us, private lawsuits have led to captioning at sports stadiums, for Netflix content, for trial participants and spectators, for major university online courses and at movie and live theaters. (ALDA was an organizational plaintiff in the movie and live-theater cases). All of this has been done at no cost to the clients or the taxpayers.
Sadly, though, a few attorneys – the ADA “trolls” — realized that ADA can be “gamed” by filing cases that, on the surface, have merit. But instead of pursuing those cases to a conclusion, the “trolls” offer to go away in exchange for a financial payoff. They point out to the defendant that what they were asking was a lot less than paying defense attorneys, and likely less than the cost of providing the necessary accommodations. The “trolls” are especially active in California and New York, where state laws permit private individuals to recover money damages.
The critical element of this business plan is volume – the attorneys have to file a lot of cases. And they do. One “pioneer” in this area was a wheelchair-bound California plaintiff whose attorney filed some 400 lawsuits claiming that he confronted virtually identical barriers to access at different businesses, mostly restaurants. These became referred to as “drive-by” cases because there was little or no proof that the named plaintiff had ever actually visited the businesses in question. Although only one of those cases ever actually went to trial, his attorney made an estimated $10 million, and it was not clear how many of the businesses actually fixed the supposed problem.
That volume of filings by one individual was a record meant to be broken, and indeed it has. The current “leader” in this area appears to be Scott Johnson, another wheelchair user, who, in just the first six months of 2021, filed some 575 lawsuits in Northern California federal court claiming he encountered barriers to access at different restaurants despite the fact that the state was on lockdown for much of that time. Mr. Johnson, who has now been indicted for tax fraud, is represented by the same attorneys who filed the captioning lawsuits referenced in the first post.
The internet has made high-volume ADA litigation even easier. A plaintiff claiming to have been excluded by architectural barriers must, in theory, have physically visited the business, which takes time. But internet sites can be visited in just a few minutes and from anywhere in the world, so plaintiffs and their “troll” attorneys can and do claim many more violations in a given time period now than in prior years.
The “trolls” damage businesses with what are, in essence, extortionate lawsuits. But they also damage us, because in the minds of the business community and much of the public, those tend to be the cases by which any ADA lawsuit gets measured. And when the business community and much of the public gets upset, legislators and even courts tend to react, and sometimes over-react, as I’ll discuss in the next post.