Serial Litigation Comes to New Orleans

Hey, I'm going to New Orleans next week!  Coincidence?  Well, actually, yes.  

Nonetheless, see this article from the Louisiana Record.  It begins:

The number of lawsuits against businesses allegedly in violation of the Americans with Disabilities Act (ADA) has grown over the past few years in the New Orleans area. 

David Whitaker, partner at New Orleans-based defense firm Kean Miller, said the recent up-tick in the number of lawsuits under the ADA has been mainly led by New Orleans area attorney Andrew Bizer of the Bizer Law Firm.

California Supreme Court: Two-Way Fee-Shifting Statute for Accessibility Cases Not Preempted by the ADA

Yesterday, the California Supreme Court issued an opinion in Jankey v. Lee.  Jankey, who uses a wheelchair, brought a case in state court and alleged that Lee's grocery store was inaccessible because it had a small step in front.  Jankey raised claims under both the public accommodations provisions of the ADA and state law, though the state law imposed the same substantive standards of liability as does the ADA.  The trial court granted summary judgment to Lee.  Although the grocery store did, in fact, have a small step at the front, the court concluded that removal of that step would not be readily achievable.  As a result, Lee did not violate the ADA or the parallel state laws.  Lee then moved for an award of attorneys' fees under Section 55 of California's Civil Code, which provides that the prevailing party -- plaintiff or defendant -- is entitled to fees in injunctive actions alleging inaccessible public accommodations.  Jankey argued that this provision was preempted by the ADA's attorneys' fees provision -- under which prevailing defendants are entitled to fees only if the plaintiff's case satisfies the Christiansburg Garment standard of being "frivolous, unreasonable, or without foundation."  The trial court nonetheless concluded that Section 55 mandated an award of fees to a prevailing defendant.  Although it did not find Jankey's claims to be frivolous, unreasonable, or without foundation, it granted the motion for attorneys' fees.  The appellate court affirmed, as did the Supreme Court in yesterday's decision.

The California Supreme Court concluded that, under the plain text of Section 55, attorneys' fees are not discretionary.  Rather, any prevailing party -- plaintiff or defendant -- in a Section 55 action is entitled to fees.

The court then rejected Jankey's preemption argument.  It first interpreted the ADA's savings clause for more disability-protective state laws as foreclosing any conflict or obstacle preemption challenge to Section 55.  The ADA's savings clause provides that "[n]othing in this chapter shall be construed to invalidate or limit the remedies, rights, and procedures of any * * * law of any State or political subdivision of any State or jurisdiction that provides greater or equal protection for the rights of individuals with disabilities than are afforded by this chapter."  The court read this clause as saving from preemption any state law that at least in part affords people with disabilities greater protection than does the ADA -- even if other aspects of the state law, or even the state law taken as a whole, provide less protection to people with disabilities.  Because Section 55 provides broader protection than the ADA's public accommodations title in one respect -- the state law empowers people with disabilities to sue when they are "potentially aggrieved" by a defendant's violations, while federal law requires an individual with a disability to show that she is "about to be subjected to" discrimination -- the court saw no "need to parse every aspect of [the] state law to determine whether, on balance, the state law is equally or more advantageous as a whole."

Notwithstanding this conclusion, the court then examined the questions of conflict and obstacle preemption directly.  The court concluded that -- even if the plaintiff's state-law and ADA claims so completely overlapped that the state-law claim required no additional work to defend -- the award of full attorneys' fees to the prevailing defendant was not preempted:  "Lee would have been entitled to the same fees whether or not Jankey pleaded an ADA claim; the pleading of an ADA claim was neither a necessary nor a sufficient cause of the fee award. The fee award here is not in any meaningful sense for or on account of having to defend against an ADA claim, but instead a consequence of Jankey‟s purely voluntary decision to seek additional state remedies."  Because "[p]laintiffs can always sue under the ADA alone, safe in the knowledge that even if they lose, defense fees will be available only in accordance with Christiansburg," the court concluded that awarding attorneys' fees to defendants more broadly in cases in which plaintiffs voluntarily choose to add a state-law claim neither conflicted with the ADA nor posed an obstacle to the accomplishment of its purposes.

Four years ago, the Ninth Circuit held that two-way fee-shifting under Section 55 was preempted by the ADA.  I doubt, therefore, that this is the last we'll hear of this issue.

A Constructive Response to Serial ADA Litigation

See this story from San Francisco.  It begins:

Some small business owners in the Sunset and Richmond districts have a new tool to stave off predatory lawsuits and bring their shops into compliance with the Americans With Disabilities Act. 

A $200,000 pilot program Mayor Ed Lee launched with Supervisor Carmen Chu on Tuesday allows small business owners in select areas to get a free inspection and a plan for compliance. It also gives them access to grant money and a $1 million loan fund to make needed improvements. 

The idea is twofold: to stave off what Lee called “drive-by lawsuits” where the cost of litigation and fines can drive shop owners out of business, while also getting owners on track to have their shop accessible to those in wheelchairs or with other disabilities as required by federal law.

California City Pays Serial Litigant $15K Not to Sue the City or Any Business Within It

As all three of my blog's readers know (I have it on good authority I picked up a third reader!  Yay!), I have taken an "anti-anti-" position on serial ADA public accommodations litigation.  I understand the frustration that many business owners express about individuals with disabilities and their lawyers who go into a town and sue dozens of inaccessible businesses at a pop before moving on to the next town and doing it again.  But to focus one's criticism on the serial litigators, I have argued, misses two key points: (1) serial litigation wouldn't work if so many businesses didn't still fail to comply with the ADA, a law that is now more than 20 years old; and (2) the remedial structure of the ADA's public accommodations title encourages serial litigation.  In a very large swath of cases (perhaps the overwhelming majority of those cases), serial ADA public accommodations litigators are suing businesses that are actually in violation of the statute.  And whatever one might think of the attractiveness of the tactic of suing lots of businesses at once, the prospect of being sued by a serial litigator does place an incentive on businesses to get educated about the ADA and get into compliance. That is why I've generally opposed efforts to limit serial ADA litigation.

But I have no tolerance for serial litigation that does not advance compliance with the ADA -- litigation that does not contribute to making businesses more accessible.  Which brings me to the following story, which begins:

George Louie is a West Sacramento man who has sued hundreds of Northern California cities and businesses for failing to comply with the federal Americans with Disability Act. 

This week, Yuba City announced it has agreed to pay Louie $15,000 to leave the city and its businesses alone for good. 

"He's agreed not to file ADA lawsuits in our city, period," said Darin Gale, Yuba City's economic development manager. "There's no timetable, it's forever." 

The agreement, which Yuba City officials say is the first of its kind, has many business owners in the Sutter County town drawing a sigh of relief.

Read more here: http://www.sacbee.com/2012/10/13/4907961/yuba-city-pays-man-not-to-file.html#storylink=cpy

I understand why the city would pay $15,000 if it would get this plaintiff to go away, but a $15,000 bounty, paid for by the city, does absolutely nothing to incentivize business owners to improve accessibility or comply with the law.  Indeed, the promise never to file an ADA lawsuit against the city or businesses within the city, at any point in the future -- even for violations that haven't yet occurred -- undermines incentives for compliance.  Indeed, to the extent that the agreement covers claims that haven't yet arisen (because there is no violation yet or Mr. Louie hasn't yet encountered or learned of the violation), it is likely unenforceable.  See 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 265 (2009) (reaffirming "that [substantive] federal antidiscrimination rights may not be prospectively waived").  But even to the extent that the agreement is enforceable, it seems to me quite discreditable.

By the way, California's recent anti-serial-litigation legislation will do virtually nothing to stop conduct like this.  It will, to be sure, prohibit plaintiffs' lawyers from placing a request for money in a demand letter (likely a First Amendment violation), but it won't stop defendants from offering, and plaintiffs from accepting, settlements like this.  And it won't stop defendants from asking plaintiffs what it will take to get them to go away, and plaintiffs from responding by saying, "Give me the Louie v. Yuba City deal."  Nor, as Julia Campins recently pointed out, should the other provisions of the new legislation stop cases like this.  The legislation will have real effects on legitimate litigation, but it won't address the real problem that this case illustrates.

Campins on the New California Anti-Serial-Litigation Law

Ace disability rights and employment lawyer Julia Campins has this post on her law firm's blog about SB1186, the new California law that is supposed to respond to serial litigation.  A taste:

Others have commented on the First Amendment concerns in the new demand letter requirements, and I will not address those. What I am concerned with here is how this legislation will work to the detriment of those who need to use courts to protect their civil rights, and will barely cause a ripple in the practices of the targets of this legislation.

Let’s return to the story of the problem litigants. How hard of a requirement is it for them to list the date or dates of their visits? Indeed, they planned the visit for the purpose of the litigation. How hard of a requirement is it for them to list the specific barriers? They went with an eye toward barriers and, like a paid expert, were looking for specific violations. 

Now, compare this problem litigant to a real person visiting a public accommodation because she likes the food or he needs to purchase some clothing. She may not make a calendar entry every time she goes to Burger King. Do you? He may not go clothing shopping on a regular basis. Both may use cash and not get receipts. She may remember that there was a problem getting into the restaurant, but not remember until she returns or is reminded that not only was the door impossible for her to open, but there wasn’t enough room for her to open it. Or, more importantly, if she was unable to get into the restaurant at all, how is she to know that there was no seating for people who use wheelchairs? The legislation makes her lawsuit difficult or impossible (assuming that it is interpreted to require specific dates of visits), but has done nothing to stop the intended targets.

Student Note on Tester Standing and ADA Title III

Just out: Leslie Lee, Note, Giving Disabled Testers Access to Federal Courts: Why Standing Doctrine is Not the Right Solution to Abusive ADA Litigation, 19 Va. J. Soc. Pol'y & L. 319 (2011).  The abstract:

Over twenty years after the enactment of Title III of the Americans with Disabilities Act (“ADA”), its promise of providing access for the disabled to places of public accommodation has remained unfulfilled. This likely stems from the wide under-enforcement of Title III; though Title III creates a private right of action for disabled individuals to sue for enforcement, the few individuals who do bring suit are often turned away for lack of standing. Perhaps these suits face skepticism and harsh scrutiny from courts because Title III suits are viewed as a “cottage industry” formed by a few profit-driven individuals who have no interest in actually removing barriers to access. Standing, however, is not the right solution for curbing these abusive practices. 

This Note will argue that ADA “testers,” disabled individuals who travel across the country searching for ADA violations and bringing suit, should have standing to sue under Title III. The statutory language and legislative history of Title III suggest that Congress intended for testers to have standing to sue, and traditional standing doctrine as applied to Fair Housing Act and equal employment testers suggest that testers should have standing. This Note will argue that the primary reason for skepticism towards ADA testers stems from practical problems with the application of Title III - specifically an under-enforcement problem and a professional plaintiff problem. The under-enforcement problem stems from the lack of incentive for most disabled individuals to bring suit, and the small number of lawyers with the Attorney General who are dedicated to ADA suits. The professional plaintiff problem arises because, in order for Title III suits to be worthwhile for a plaintiff and his or her attorney, they must file many suits against many places of public accommodation, which often results in profit-driven, rather than access-seeking, litigation. These problems can be resolved by revising Title III to clearly give testers standing to sue, and employing other mechanisms, like attorney's fee-shifting, vexatious litigant sanctions, and compliance certification, to curb abusive litigation.

Brown Signs Anti-Serial-Litigation Law

See this article.

California Serial Litigation Bill to Governor Brown

So I spent the last week of the summer getting ready to teach a new crop of students, but now I'm back, and there are a number of important cases and events that happened this week and that I'll report this weekend.  One happened just this morning.  The California legislature passed, and sent to Governor Brown, the latest iteration of its anti-serial-litigation bill.  You can read about it here.  I may have some analysis of the bill over the next few days.

House Judiciary Subcommittee on the Constitution Holds Hearing on Son-of-the-ADA-Notification Act

Yesterday, the Subcommittee on the Constitution of the House Judiciary Committee held a hearing on H.R. 3356, the "ACCESS (ADA Compliance for Customer Entry to Stores and Services) Act," which is the latest version of the oft-proposed ADA Notification Act.  The bill's sponsor, Rep. Lungren, testified, as did business owner Lee Ky, disability rights lawyer Andy Levy, and defense lawyer David Warren Peters.  You can find their written testimony, as well as the video of the hearing, at the link above.

Lungren Pushes Son-of-the-ADA-Notification-Act

See this article.  And watch for a hearing on the bill before the House Judiciary Committee next week.

Smart Ass Cripple on Serial Litigation

Let me break my radio silence just to share this terrific post by Smart Ass Cripple on serial ADA litigation.

Bill Limiting Public Accommodations Suits Unanimously Passes California Senate

See the latest from the Sacramento Bee.

KABC on the California Legislature and Serial Access Litigation

See this story.  An excerpt:

State leaders are finally listening. They've approved a bipartisan bill that would stem the tide of ADA lawsuit abuses. 

* * *

Among other things, the proposal would put a stop to threatening demand letters businesses get. 

"It would ban demand for money letters that say, 'Pay me now, or pay me more later,' which unfortunately are sent by a few lawyers and law firms basically looking to make a quick buck," said state Senate President Darrell Steinberg (D-Sacramento). 

The proposal also seeks to give businesses at least 30 days to fix the problem before a lawsuit can proceed.

A Good Perspective on the NYT on Serial Litigation

See this interesting blog post.  An excerpt:

My caregiving job emphasized community integration, so I took people on lots of walks and transit outings in different neighborhoods in the Portland area. When that’s the crux of your work, you learn pretty quickly which sidewalks are passable and which are just slightly overgrown with hedges; you learn which sidewalks have appropriate curb cuts and which sections of the neighborhood are better traversed right on the street. You learn whose wheelchair will fit on the bus and whose won’t. 

And you learn which businesses are accessible and which are not. Obviously, you avoid the latter. Planning dates — and these days, planning my own forays into the community — requires a similar, but different, set of calculations about what’s accessible and what isn’t. 

What I’m getting at is that if you write that no one is being hurt by a lack of accessibility, you’re right, but only because the ambulance chaser analogy and framing is fundamentally flawed. That people with disabilities are in many cases more likely to accept segregation than to seek out — and attempt to access — businesses they know aren’t going to be accessible for them doesn’t surprise me. Nor does it surprise me that some plaintiffs have shown little interest in accessing businesses named in the claims their names were attached to. Most of us — able-bodied or not — only visit places we can get to, and where we’ll feel comfortable, and avoid places that don’t fit that category for so long they just drop off our internal map and out of our routine.

Jacob Sullum Gets It About Serial ADA Litigation

Over at the Reason blog (which I highly recommend, though I certainly don't always agree with), Jacob Sullum has a good post about the Times's article yesterday on serial ADA litigation.  The key language:

If you accept the ADA's premise, which is that the government should force business owners to bear the cost of making the world more navigable for disabled people, you should be grateful to lawyers like Weitz for helping enforce that rule. More than two decades after the law was passed, Weitz is rooting out violators and making them comply, all at no cost to taxpayers.

New York Times Discovers Serial ADA Litigation

See this article from today's paper.  My views on this issue are a matter of public record: The ADA has been on the books for more than 20 years.  Private lawsuits are, as a practical matter, the only way to effectively enforce the law against businesses that are still violating it.  And Congress recognized that private lawsuits will not be brought unless successful plaintiffs can recover attorneys' fees.  So if the suits brought by serial litigators are legally meritorious -- and extremely often, those suits are -- the fact that their lawyers are motivated by money and not by abstract do-gooderism may seem tacky to some, but that's how Congress designed the system.  I continually fail to understand why it's okay for defendants' lawyers to be motivated by money, but it's the worst thing ever when plaintiffs' lawyers are.

More on Sen. Feinstein and Serial ADA Litigation

See this column in the San Francisco Chronicle.

Sen. Feinstein Opposes Serial Disability-Access Litigation in California

See this article, which begins:

U.S. Senator Dianne Feinstein says if California lawmakers don't act to clamp down on "predatory" disability access lawsuits she may author federal legislation to do just that. 

In a March 8 letter to fellow Democrat and Senate President Pro Tem Darrell Steinberg, Feinstein accused plaintiffs lawyers of coercing business owners into paying five-figure settlements by threatening potentially costlier lawsuits targeting minor violations under the state's access and civil rights laws. 

"It appears these suits and demand letters are driven by a unique California law that, unlike the federal [Americans with Disabilities Act], permits the recovery of damages for noncompliance," Feinstein wrote. "As a result, I respectfully ask that you use your leadership position in the California State Senate to help advance legislation that will address this problem."

Small-Business Owners Targets of ADA Lawsuits

See this column by that title in the SF Chronicle.

Two From California on Serial Litigation

See this story from Channel 7 in LA, and this article from the Orange County Register.