Small business often hurt by serial plaintiffs in ADA violation suits, expert says

By Carrie Bradon | Apr 12, 2018

LOS ANGELES – Companies throughout California have been suffering due to the occurrence of serial plaintiffs, individuals hired to find violations of requirements under the Americans with Disabilities Act, yet these lawsuits are doing little to further the cause of justice and may in fact be hurting the local economies, attorneys say.

Carmen John Perri, a resident of California, has been the plaintiff in 75 federal civil lawsuits filed in the California Central District since last July, lawsuits which have been against local businesses that have allegedly not been in compliance with ADA regulations.

Perri recently reached a settlement March 2 with Tam Doan Shop in the U.S. District Court for the Central District of California. His original complaint was filed in January. He is represented by Manning Law of Newport Beach.

Aaron K. Haar, an associate at Jaburg Wilk, explained that this type of serial plaintiff is not particular to California. His firm defended more than 100 lawsuits filed by an Arizona serial plaintiff who had filed more than 1,200 lawsuits between 2016 and 2017 alone.

"He is abusing the system in the sense that he very likely has not accessed these businesses or intended to access the businesses other than for purposes of filing a lawsuit," Haar told the Northern California Record. "There are some instances in which a serial plaintiff will do good and there's actually some case law where it talks about how serial plaintiffs often fill a vital role in the system, and those are the plaintiffs who force property owners to rectify violations that actually do deny access to individuals with disabilities."

Haar believes that in the Perri lawsuits, however, the small and technical aspects of the lawsuits are clearly what give away the lack of authenticity related to the complaints.

"Because he is filing a ton of lawsuits with these technical violations that don't deny access, my conclusion is that he is in fact abusing the system," Haar said.

Haar explained that the ADA is made up of a very necessary set of rules that help to ensure that individuals with disabilities are given the same access to locations and services that the majority of individuals without disabilities may take for granted or not be aware of how exclusive they are.

"Unfortunately, the attorneys behind these cases are kind of like the bad kid in class where they ruin everything for everyone," Haar said. "What we typically see driving these lawsuits is an enterprising attorney who finds a willing participant from the disabled community to act as the face of the lawsuit."

The attorney normally promises to pay the plaintiff an amount of money from the lawsuit filed and asks the disabled individual to drive to different businesses and assess which ones are not in compliance with ADA, Haar explained. 

Kristina Launey, Seyfarth Labor & Employment partner, explained the challenges surrounding these types of cases in California. 

"Both the ADA and the California Statutory Schemes were put in place in large parts because the feeling was that there was no incentive for attorneys to take the case and thus no incentive for businesses to comply with the ADA without allowing for fees and costs, so that's how the structure has been," Launey told the Northern California Record. "Some disabilities rights advocates would say 'it's the businesses who are abusing the system because the ADA and the California Building Code require what they require and they wouldn't be able to file suit if the businesses weren't already violating the law.'"

Due to the sensitivity of the issue, legislators in California have been wary of making changes to the statutes that were designed to have a positive effect, even despite the current abuse of the system.

"Even though there's legislative reform that is going through the federal government right now and it passed the House, word on the street is that there's not a whole lot of appetite in the Senate to pass it because the disabled community views it as a restraint on this legislation, and without these lawsuits, businesses wouldn't bring their businesses into compliance," Launey said.

Maryann Maloney with the California Citizens Against Lawsuit Abuse explained that staying in compliance with ADA regulations brings an entire set of its own challenges as the regulations can change on a yearly basis, making it difficult for small businesses that are simply trying to earn a living and to stay up to the code. It is often the small businesses that are hurt most by the lawsuits.

"The whole town of Julian, a little town in San Diego, was hit by a plaintiff who went and sued hundreds of businesses in the same day. After a while, it would have an impact on the businesses because it's no joke that businesses do leave California for more business-friendly states, and if you're a small business and you have a little restaurant, maybe you could have that same little restaurant in another state," Maloney told the Northern California Record. "It absolutely has an impact on the local business and the jobs that we create here."

Though bills have been proposed to allow local businesses a period of time to remedy their code violations, none have been passed in California and time will tell if those changes in law will come to the state.

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