One can appreciate the difficulties faced by people with disabilities when they attempt to navigate streets and stores. But government legislation has unfairly turned a moral responsibility into a legal duty, and created fertile ground for legal terrorists determined to enrich themselves.
Indeed, disabilities litigation is dominated by a small number of abusers, with horrid consequences for innocent businesses. Reports Time:
Jarek Molski, 38, is a bit of a legend in legal circles. Disabled in a 1985 motorcycle accident that left him a paraplegic, he has filed 400 lawsuits against businesses under the Americans with Disability Act, alleging access violations. He was dubbed a “hit-and-run plaintiff” in 2004 by a federal judge and barred from filing any more lawsuits. Molski, of course, appealed to the U.S. Supreme Court, which finally rejected his case on Nov. 17 without comment. Molski must now petition the Central District Court of California and all state courts first before filing any new lawsuits.
Molski may sound like an extreme example but he is far from the only plaintiff who has filed hundreds of lawsuits under the ADA in California. A significant number of people who sue under the ADA have legitimate grievances and appear to be motivated by a sincere desire for access rather than monetary gain. However, according to David Warren Peters, CEO and general counsel of Lawyers Against Lawsuit Abuse, a small group of opportunists and select law firms are responsible for a huge percentage of the lawsuits. “I’ve seen plaintiffs that make Jarek Molski look like a cub scout,” says Peters, whose San Diego-based firm represents and consults businesses and individuals accused of ADA noncompliance across the state and country. One plaintiff, he says, has filed more than 1,000 ADA accessibility suits alone.
California, along with Hawaii, Illinois and Florida are particular hotbeds for ADA lawsuits and the law firms that bring them to court. “California may be the worst in the country,” says Peters, citing several factors for potential abuse, chief among them two California statutes that provide $1,000 or $4,000 in minimum damages plus attorney fees per successful claimants. Many claimants multiply these damage amounts by the number of conditions they observe at a property. This frequently results in $50,000 or more in damage demands, says Peters. Some serial claimants will file for damages against dozens of businesses they say they have visited on the same day or for repeated visits to an establishment.
“Opportunists see this as a great way to make $12,000 a day or more just by eating out,” says Peters. “Easy money with the help of the courts is bound to attract opportunists.” Peters adds that a surprisingly large number of suits are filed by individuals with significant prior criminal history. “It’s hard enough to get a job if you have a criminal record. It’s probably harder if you have one and are in a wheelchair. These lawsuits offer an unbelievable amount of money.”
Perhaps unsurprisingly, Molski’s attorney, Thomas Frankovich, says his client and the dozen or so serial ADA plaintiffs his firm has represented are activists and crusaders. Frankovich dubbed Molski (who does not have a criminal record) “the Sheriff” because “he started going into town to clean it up.” Frankovich says he has filed 223 ADA lawsuits on behalf of Molski alone. (Molski used other attorneys to file his other suits.) Frankovich says that Molski only began suing after his letters to offending businesses were ignored. (Molski was out of the country and couldn’t be reached for comment.) Says Frankovich: “Letters don’t work. Only the hammer of litigation gets them to do what they need.”
But Frankovich himself is being charged by the state bar of California on three counts of misconduct, stemming from ADA lawsuits he filed on behalf of Molski. One count alleges that Frankovich’s litigation strategy amounted to a “scheme to extort money from defendants.” Says Frankovich of the charge: “It’s an absolute fabrication based on absolutely no supportive facts. Using the fact that he filed 223 lawsuits as evidence of a scheme is absurd. His rights were violated in 223 cases where significant architectural barriers existed.”
The flood of potentially frivolous lawsuits, many directed at small businesses of less than 1,000 square feet, can have a profound effect on the local economy. Fearing the costs of a lengthy legal battle, many small business owners decide to settle with plaintiffs for thousands of dollars. Some can’t absorb the losses and end up shuttering their businesses.
Federal and state legislators should take note before they approve similar open-ended invitations for abusive lawsuits in the future.