Molski/Frankovich Sanctions Opinion Issued

Judge Rafeedie of the Central District of California just issued his sanctions opinion in Molski v. Mandarin Touch Restaurant, 2005 WL 535357 (C.D. Cal. March 8, 2005). The opinion makes a strong case that Molski made a number of almost incredible allegations about injuries he had suffered at restaurants he sued. In some instances, he claimed to be injured at multiple establishments, separated by over 100 miles, in a single day; in others, he included in his the complaint boilerplate allegations that he experienced physical injury in a particular restaurant even though other paragraphs of the complaint alleged that he could not even get into the restaurant because the entrance was blocked by stairs. The opinion also makes a strong case that Molski's attorney, Franikovich, engaged in unethical conduct by, among other things, giving legal advice to unrepresented defendants he was suing. (The advice seemed to consist of: Settle now, because the price tag only goes up; and certainly don't hire your own lawyer.) The court then reached the following conclusion:

This Court has an obligation and a duty to protect the public from an unscrupulous practitioner. The record before the Court establishes that The Frankovich Group has engaged in a pattern of unethical behavior designed ultimately to extort money from businesses and their insurers. The Court believes that the record before it is sufficiently egregious to justify the suspension, or even disbarment, of the lawyers constituting The Frankovich Group. Accordingly, the Court has requested that the State Bar investigate the matter and consider disciplinary action if appropriate. In the meantime, the Court believes that the public can be adequately protected by a less restrictive and drastic measure: a pre-filing order that requires The Frankovich Group to seek leave of court before filing any new complaints under Title III of the Americans with Disabilities Act.

A pre-filing order is the least restrictive sanction that protects both the public and the courts. Some sort of pre-filing notice to the courts is necessary because of The Frankovich Group's history of filing lawsuits and then quickly settling the matter. If a court is not allowed to examine the complaint before it is served on the party, the matter may be settled and dismissed before the court has a chance to determine the issues of standing and jurisdiction discussed herein. Moreover, it is not sufficient merely to require Plaintiff Molski to seek leave of court before filing a complaint, because The Frankovich Group has demonstrated an ability to recruit additional serial plaintiffs who make nearly identical claims. Therefore, it is the order of the Court that The Frankovich Group, as presently constituted, and as it may hereafter be constituted, including all shareholders, associates and employees, is hereby required to file a motion requesting leave of court before filing any new complaints alleging violations of Title III of the Americans with Disabilities Act in the United States District Court for the Central District of California. Such a motion must include a copy of this order.

Based on the facts as described in the court's opinion, it's kind of hard to find fault with the result. Nobody should approve of unethical, sharp lawyering or filing complaints containing incredible allegations. And a preclearance requirement, in these limited circumstances, does seem narrowly tailored to prevent abuse of the judicial process.

But as I've said all along on this case, I think there's a bigger point here that shouldn't be lost. The lack of compliance with ADA Title III in this country is a scandal. The statute has been on the books nearly 15 years, but large numbers of retail stores and restaurants remain inaccessible to people with disabilities in every city in America. I don't have much sympathy for business owners who have been violating what is after all a federal law for so long but who want people with disabilities to give them notice before bringing lawsuits. We should all be on notice -- and we should have been for a decade and a half.

Nor do I think there's necessarily anything wrong with serial plaintiffs. The public accommodations title of the ADA does not authorize an award of money damages. Without that financial incentive, it's hard to find plaintiffs or lawyers who believe it worth their time to file ADA public accommodations suits. Even people who really were excluded from stores or restaurants that were really in violation of the ADA often will not want to go through the stress and hassle of an ADA suit if the best they can do at the end of the day is get a court to tell the defendant to go and sin no more. So the plaintiffs in ADA public accommodations suits are likely to be disproportionately ideological plaintiffs -- people who see it as in some ways their mission to make their communities accessible. Ditto for the lawyers. Such people are likely to file lots and lots of suits. There's nothing inherently suspect about that. One of the reasons why there's such scandalous noncompliance with the ADA's public accommodations title is because there's not a sufficient incentive for plaintiffs and lawyers to bring suits; the existence of ideological, even serial, plaintiffs helps a tiny, tiny bit to compensate for the underenforcement of the statute.

What makes this case different is that the plaintiff and his lawyer were not just suing under the ADA. They were also suing under state law, which (unlike ADA Title III) authorizes awards of damages -- though Judge Rafeedie's opinion suggests that the state-law damages claims were stretches here. The existence of a damages remedy obviously changes the calculus and makes extortionate litigation more of a threat. On the other hand, it also may provide a necessary incentive for meritorious suits. Without a damages remedy, the widespread noncompliance with ADA Title III is likely to continue. And, at the end of the day, it's the fact that so many stores and restaurants have failed to comply with the ADA that enables lawyers and plaintiffs like these to do what they are doing.