Ninth Circuit defends ADA filing mill, resuscitates Molski suit

by Ted Frank on March 23, 2007

We’ve had many stories on frequent filer Jared Molski, the vexatious litigant who has filed hundreds of ADA actions in the last five years, and his lawyer Thomas Frankovich, briefly suspended for related ethical violations. Today the Ninth Circuit came down with an opinion in the case of Molski v. M.J. Cable:

Molski, who is paraplegic, sued Cable’s for violations of the
Americans with Disabilities Act (“ADA”) and California’s
Unruh Civil Rights Act (“Unruh Act”), alleging that Cable’s
failed to accommodate the disabled. Although Molski provided
uncontradicted evidence that Cable’s did not identify
and remove architectural barriers, the jury returned a verdict
for the restaurant. The District Court denied Molski’s motion
for a new trial, speculating that the jury could have reasonably
concluded that because of Molski’s record of litigiousness, he
was a “business” and not an “individual” entitled to the
ADA’s protections. We reverse.

[...]

On cross examination, Molski acknowledged that: he did not complain
to any of Cable’s employees about his access problems; he
had filed 374 similar ADA lawsuits as of October 8, 2004;
Frankovich had filed 232 of the 374 lawsuits; even more lawsuits
had been filed since that date; Molski and Frankovich
averaged $4,000 for each case that settled; Molski did not pay
any fees to Frankovich; Molski maintained no employment
besides prosecuting ADA cases, despite his possession of a
law degree; Molski’s projected annual income from settlements
was $800,000; Molski executed blank verification
forms for Frankovich to submit with responses to interrogatories;
they had also filed lawsuits against two other restaurants
owned by Cable’s; they had filed a lawsuit against a nearby
restaurant; and Sarantschin obtained up to 95% of his income
from Frankovich’s firm for performing investigations for
ADA lawsuits.

The court acknowledges Molski’s notorious history as a vexatious litigant, but effectively holds that the ADA permits such strategies. That legal holding appears correct (the ability of professional litigants to extort small businesses is a statutory problem with the ADA and the Unruh Act that needs to be solved by the legislature, rather than by courts). But the jury could have chosen to disbelieve Molski’s testimony, given that Molski had the burden of proof and had substantial pecuniary motivation. The Ninth Circuit simply refuses to acknowledge this possibility in reversing the jury’s verdict. (It’s unclear whether testimony the restaurant vice president provided on cross-examination provides sufficient admissions to justify the appellate court’s decision; it is possible that this is the case.) Worse, in dicta in footnote 3, the Ninth Circuit suggests that it may have been improper for the defendants to have cross-examined Molski on his full-time litigation career because such evidence would have been “irrelevant.” (Via Bashman.)

Update: The On Point blog (sadly still missing permalinks, though now with an RSS feed) posts the trial court decision denying a new trial, which is less than absolutely persuasive.

{ 3 comments }

1 David Schwartz 03.24.07 at 2:40 am

“But the jury could have chosen to disbelieve Molski’s testimony ..”

The ruling does not rely on Molski’s testimony but on the testimony of the defendants. Even if the jury disbelieved every word Molski said, their finding still could not be supported by the evidence.

Had the jury disbelieved Molski, they still would have had to find that the restaurant in fact did not make accommodations because they *admitted* they didn’t.

Don’t blame the court for enforcing bad laws.

2 Ted 03.24.07 at 12:33 pm

Well, the court says the restaurant admitted they didn’t. As I said in the post, we don’t know what the full testimony was, so we don’t know whether there was other testimony that could have supported the jury’s verdict; the court’s failure to acknowledge that a jury could rationally choose to disbelieve Molski and the court’s claim that the cross-examination of Molski was “irrelevant” does not engender confidence that they are not being disingenuous with respect to the restaurant official’s testimony. But, as I noted in the post, it’s within the realm of possibility.

3 Joe Bingham 03.29.07 at 12:42 am

I had the pleasure of bringing this case up in my I/O psychology class Monday night. My teacher is quite the ADA fan (tho’ I can’t quite tell if he’s playing devil’s advocate…). His thinking seems to run along the lines of “well, if it only asks for a reasonable accomodation, it must be a reasonable law.” Hm.

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