Judiciary

The ADA Is a Serial Litigator's Dream

While well-meaning, the ADA has spawned a cottage industry of unscrupulous lawsuits.

Arnold Ahlert · Aug. 2, 2018

In 1990, the Americans with Disabilities Act (ADA) became the law of the land, prohibiting discrimination against people with disabilities and making sure they have access to the same opportunities as everyone else. In 2008, the Americans with Disabilities Act Amendments Act (ADAAA) expanded the definition of “disability” and overturned two court cases that allowed unnecessarily high standards of ability to be imposed on the claimants in those cases. While well-meaning, the ADA has spawned a cottage industry where disabled Americans, aided by unscrupulous attorneys, file multiple numbers of lawsuits against business owners who are more inclined to settle than engage in litigation they can ill-afford.

As a 2017 Orange County Register article reveals, many of these lawsuits epitomize the word “frivolous.” “Businesses can be sued because a bathroom mirror is an inch too high, a sign is missing or the paint on a disabled parking space has become too faded over time,” the paper reported. “There are numerous examples like the San Ramon gas station owner who was forced to install a shield under a bathroom sink to prevent burns to the legs of someone in a wheelchair — even though the bathroom does not even have hot water.”

Unsurprisingly, California made the problem worse with the passage of the Unruh Civil Rights Act. It quadruples the fines imposed by the ADA, and requires payment of the plaintiff’s legal fees. And despite the state’s passage of a law to limit such lawsuits, it remains the epicenter of them: 40% of ADA cases nationwide are filed in the Golden State, despite it having only 12% of the nation’s disabled population.

California is hardly an outlier, and it’s not only ADA violations with regard to a business’s physical access that are being targeted. “Lawsuits accusing businesses of failing to ensure that their websites are accessible to deaf, blind, or otherwise disabled customers have been on the rise in recent years and show no sign of tapering off, say attorneys who specialize in accessibility litigation,” reports Florida’s Sun-Sentinel newspaper.

Courts have ruled that websites must be accessible if they are connected to physical entities such as retail stores, restaurants, and hotels, or operated by local governments archiving public documents or holding public meetings. For a website to be ADA-compliant, written content must be coded for audio translation, videos must include audio description for the blind and close captions for the deaf, and all interactive commands must be keyboard-command accessible for those incapable of using a mouse.

Many of these requirements were engendered by a 2017 landmark court case in which U.S. District Judge Robert Scola Jr. ruled that supermarket chain Winn-Dixie violated the ADA by not making its website accessible to the visually impaired, failing to offer them the “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations” provided to its other customers. This case was the first evidence-based ruling that an inaccessible website violated the ADA’s Title III “public accommodation” requirements.

Thus, while physical locations “are still tested and sued, a recent increase in federal litigation based on ADA violation claims in Florida and elsewhere has been fueled by website-based challenges,” the Sun-Sentinel adds.

No doubt.

The latest ADA abuse has occurred in New York City. Arik Matatov, a 24-year-old Queens resident, sued Manhattan businesses for their lack of wheel chair accessibility over a six-week period last winter. “He’s looking to have access to places. He’s very strong on that,” said Matatov’s lawyer, Jeffrey Neiman. When Neiman was asked why Matatov would visit places that would seemingly have little to offer him, such as the bridal shop or a beauty-supply store, the attorney insisted Matatov “likes to browse.”

Thus the letter Neiman sent to 49 Manhattan establishments should surprise no one. “To avoid litigation, we offer to settle this matter for $50,000 plus the commitment to purchase and have readily available a portable ramp, it reads.” Neiman’s rationale for the $50,000 settlement figure? That’s what the New York State attorney general could fine the businesses for not complying with ADA mandates. “We’re not making oodles and oodles of money,” he insisted.

Really? Assuming he were successful, these 49 lawsuits alone could generate a payout of $2.45 million.

Businesses can’t afford them. Max Leifer owned an Italian restaurant called Da Marcella. He was sued by Jose Figueroa and his attorney Stuart Finkelstein, who have filed 21 other similar cases against businesses since 2017. When Finkelstein demanded $25,000 in fees in addition to Leifer’s own legal defense costs, and the restauranteur realized an ADA-compliant ramp would eat up 25% of his business space, he closed down — and laid off eight employees.

On the bright side, the New York Post visited Matatov a little over a week ago — and saw him walking. Neiman claimed he had no idea, and that he wasn’t into “fake lawsuits.”

Maybe not, but there appears to be no downside to filing them, because as it is currently structured, the ADA is a serial litigator’s dream. In a column for The Hill, Rep. Ted Poe (R-TX) reveals just how rampant the abuse has become. “Serial Plaintiff Howard Cohan has filed 1,114 ADA Lawsuits since 2012, making him one of Florida’s most prolific ADA abusers,” Poe reveals. “What’s worse? He’s never visited many of the small businesses he has sued, instead hiding behind a computer, using mapping programs to determine if a business has an alleged violation.”

Poe introduced a bill, “H.R. 620: ADA Education and Reform Act of 2017,” to address the problem. It would require a “notice and cure” period, whereby someone claiming discrimination must first provide written notice of the complaint to a business owner, who has 60 days to acknowledge the complaint’s receipt, and an additional 120 days before legal action can be undertaken. Despite pushback from Democrats, the bill passed the House by a 225-190 vote last February.

Nonetheless, 43 Democrat senators committed to oppose the legislation in April, making it clear they could filibuster any attempt to bring it to a vote. In a letter sent to Majority Leader Mitch McConnell (R-KY) they insisted H.R. 620 would do nothing to stop frivolous lawsuits due to “specific State laws that unlike title III of the ADA, authorize monetary damages.” Democrats further insisted H.R. 620 “gut” the ADA.

Nonsense. A notice and cure period would have no impact whatsoever on state-imposed fines. It would merely put a crimp in a legal industry that generates income by targeting businesses with no option to become ADA-compliant before being subject to litigation. Fair-minded Americans might ask themselves why the same money businesses could use to remedy their deficiencies is better spent on serial shakedown artists and their equally rapacious attorneys.

They might also ask themselves what the Democrat Party’s real motives are. Here’s a hint: political contributions by the legal industry (think trial lawyers) favored Democrats over Republicans by a 77% to 23% margin in 2018 — just as they have favored Democrats by similarly lopsided margins since 1990.

Sensible reform would gut the ADA? Gut a Democrat Party revenue stream is more like it.

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