Posts Tagged ‘ADA filing mills’

ADA: “The New Crips”

We’ve linked in the past to a lot of excellent investigative journalism on the disabled-rights filing mills that have blanketed whole business districts in California and elsewhere with accessibility complaints that quickly convert to cash demands. (Some examples: Carmel (Calif.) Pine Cone on Jarek Molski and Thomas Frankovich, blogger George Wallace on Jerry Dolan, CNN on George Louie, among others; and I might as well promote my own 2004 effort for City Journal). Among the most riveting of the bunch appeared this fall in Southern California’s Orange County Weekly. (R. Scott Moxley, “The New Crips”, Orange County Weekly, Oct. 13). A few highlights:

* “Lawyers familiar with [wheelchair user David Allen] Gunther’s activities estimate he’s taken more than $400,000 in the last 36 months, mostly from mom-and-pop shops in Garden Grove, Anaheim, Fountain Valley, Orange, Tustin, Buena Park, Stanton, Seal Beach, Santa Ana, Dana Point, Huntington Beach and Los Angeles. If true, that’s quite a haul for a man who has spent most of his adult life unemployed, according to records obtained by the Weekly.”

* One of the first targets of Gunther’s suits, a flower seller in Anaheim, fought back, pointing out to a judge that she was herself wheelchair-bound and that her shop had a ramp. Gunther’s suit was dismissed, with no apology; “on the day Gunther said he drove to Gibson’s flower shop, he claimed in separate legal filings that he also wanted to patronize Gibson’s neighbors: a massage parlor, a dental office and a palm reader.” He got money from the massage parlor but not from the palm reader, who like the flower seller pointed out to Gunther’s lawyer that he did indeed have a ramp.

* “A Weekly investigation traced Gunther’s activities around the western U.S. during the last quarter of a century, uncovering evidence that not only has he exaggerated his reliance on a wheelchair, but he’s also whitewashed his own history of chronic unemployment, multiple drug addictions, narcotics trafficking, assaults, petty thefts, burglaries, a decade of missed child support payments, and more than a dozen arrests and stints in jail.”

* Gunther’s lawyer is none other than longtime Overlawyered favorite Morse Mehrban, (Nov. 4-5, 2002, Mar. 12, 2004, Jul. 9, 2004). Faced “with a discovery demand for the details of Gunther’s ADA settlements, Mehrban resisted for weeks, arguing that the information was ‘confidential and proprietary.’ Said Mehrban, ‘There is nothing to be gained by examination of the documents.’ Eventually, he told a judge that the issue was moot. He routinely destroys all Gunther’s paper records and erases the memories of his office computers, he said.”

* Nor is it possible for members of the outside public or media to attend the monthly meetings of Equal Access Now, a group Gunther has set up to promote access complaints. “‘Sorry, it’s private,’ said Gunther. ‘I teach disabled people about their rights.’” Gunther often files actions in concert with three other wheelchair users, each of whom claims the $4,000 per violation entitlement.

* After ending a client relationship with his own former lawyer, Gunther sued, claiming the lawyer’s bathroom was unaccessible. The lawyer’s staff said that Gunther not only had used the bathroom without incident but that he had in fact comfortably walked into and out of the office on repeated visits.

* At a meeting of some of Gunther’s victims in Santa Ana, “Jin Kim, owner of a barbecue restaurant at 17th Street and Grand Avenue, cried. He recounted the shock of getting the lawsuit without warning, how Mehrban had coldly refused to negotiate despite pleas, and that he had to sell his wife’s ring and a vehicle to pay Gunther $16,000—and his own attorney another $4,000 in fees. His crime? His restroom mirror was allegedly mounted a few inches too high and the door was a few pounds too heavy to push.”

* And his lawyer’s own offices? As it happens, they’re up a steep flight of steps in Koreatown: “Mehrban says it would not be practical to make his office accessible to the handicapped.”

The whole article, again, is here. Note that the California legislature has shown no discernible interest in amending the Unruh Act so as to curb this kind of entrepreneurial activity. Note also that the “ADA Notification Act”, a proposal in Washington aimed at curtailing cognate abuses based on the federal ADA, was unable to attain any serious traction even in the supposedly pro-business Republican Congress now drawing to its close.

P.S. Gunther’s activities also figured in the notable and recently decided case of Gunther v. Lin, discussed by Ted Dec. 1.

Filed under: ADA filing mills, disabled rights, George Louie, Jarek Molski, Morse Mehrban, Thomas Frankovich

More drive-by disability suits

We’ve previously covered lawyers who file hundreds of lawsuits alleging discrimination against the disabled over alleged technical violations of the law, and then extort settlements at thousands of dollars a pop. (E.g., Nov. 4; Aug. 28; May 31, 2005). The Sacramento Bee recently ran an extensive series on the issue. (Marjie Lundstrom and Sam Stanton, “Visionary law’s litigious legacy”, Nov. 15 ; Id., “Frequent filers”, Nov. 16; Id., “Targeting entire towns”, Nov. 12; Bullet-point summary).

A California court has interpreted that state’s Unruh Civil Rights Act to only provide $4000 penalties in the case of intentional violations of the law; while this is a good public policy result in the abstract, I’m personally wary of the court using its judicial power to rewrite the poor legislation. It also doesn’t fix the problem with the federal law. (Gunther v. Lin; Wendy Thomas Russell, “Court ruling puts crimp in disability lawsuits”, Long Beach Press Telegram, Nov. 19). And in Florida, the press is just getting around to noticing the drive-by problem because of Robert Cohen’s 300 suits. (Kelli Kennedy, “‘Drive by’ suits rake in dough for attorneys”, AP/Miami Herald, Nov. 28 (h/t W.F.)). Even reflexive reform opponent Stephanie Mencimer takes notice and can’t defend the parasitic lawyering involved, but manages to spin the issue to implausibly blame the Republicans for the problem—though the ADA’s civil remedies were drafted by Democrats when they controlled Congress in 1991.

Filed under: ADA filing mills, disabled rights, Florida, Stephanie Mencimer

Update: Calif. ADA lawyer suspended

Setbacks for key figures in a prominent disabled-access filing mill:

Two of the attorneys behind an onslaught of ADA lawsuits in California — including at least 20 involving Monterey County restaurants and wineries — have run into serious legal troubles of their own.

Thomas Frankovich, who represented plaintiff Jarek Molski in hundreds of handicapped-access lawsuits over the last five years, was suspended June 19 from practicing in the U.S. District Court in Los Angeles. The six-month suspension came after one judge on the court, Edward Rafeedie, declared Frankovich a “vexatious litigant” and said he would recommend Frankovich for disciplinary action because of his “abusive and predatory litigation practices.”

(Paul Miller, “Indictment, suspension for two ADA lawyers”, Carmel Pine Cone, Jul. 21). Also in June, as was mentioned here in a post at the time (Jul. 5; see also Patterico, Jul. 1), Los Angeles attorney Stephen Yagman, who had represented Frankovich in defense of his ADA practice, was himself indicted on federal charges of tax evasion and bankruptcy fraud. In February 2005, after Judge Rafeedie had threatened Frankovich with sanctions, Yagman had said that “Judge Rafeedie’s mean-spiritedness, his cruelty, and his contempt for civil rights make Hitler look like a humanitarian.” (Paul Miller, “ADA lawyer’s new strategy: Insult the judge”, Feb. 11, 2005). More on Yagman: Jessica Seigel, “Cop griller”, George, Mar. 1998; Patterico, Jun. 3, 2004.

More Carmel Pine Cone coverage of Frankovich and Molski here, here, here and here. Our coverage: Sept. 21 and Dec. 12, 2004, Jan. 8 and Mar. 18, 2005. And for a very different point of view, once again, here’s Mary Johnson, “Jarek Molski’s problem — and I don’t mean access”, Ragged Edge, Oct. 24, 2005, arguing that Frankovich and Molski just aren’t good enough at getting their story out.

Filed under: ADA filing mills, bankruptcy, disabled rights, ethics, Jarek Molski, Stephen Yagman, Thomas Frankovich

ADA filing mills: get those facts straight!

Taking advantage of the liberal (and lucrative) provisions of disabled-rights law in the Golden State, wheelchair user Jerry Doran has filed “more than 200 lawsuits in state and federal court against restaurants and other public establishments throughout California, alleging insufficient disability access. He has filed so many suits, in fact, that he has begun to lose track,” notes George Wallace at Declarations and Exclusions. Last month U.S. District Court Judge Cormac J. Carney returned judgment in favor of a Del Taco restaurant in Mission Viejo — 500 miles from where Doran lives — against Doran’s claim of having suffered improper lack of accommodation. Wallace (Jul. 18) takes up the tale:

Although there was no question that Mr. Doran is disabled, Judge Carney was ultimately unable to persuade himself that there was evidence sufficient to prove that Doran had actually sustained any harm at, or had ever actually been to, the Mission Viejo Del Taco.

After describing and praising the purposes of the ADA, Judge Carney’s Memorandum Decision [PDF] notes that it is a tool prone to misuse:

Despite the important mission of the ADA, there are those individuals who would abuse its private cause of action provision by filing lawsuits solely with the intent to profit financially. This potential for abuse of the ADA has been well documented in the Central District of California . . . . Courts have referred to this proliferation of ADA lawsuits as a ‘cottage industry’ and have labeled plaintiffs who file these lawsuits ‘professional plaintiffs,’ ‘serial plaintiffs,’ and ‘professional pawns.’

* * *

The consequences of this abuse of the ADA are severe: businesses and insurers are harmed, the integrity of the bar is called into question, and the public’s confidence in the courts is impaired. . . . Simply put, this litigation abuse of the ADA results in the exact harmful consequences that Congress sought to eradicate by passing the ADA. As more than one court has observed, the result of this abusive litigation is that ‘the means for enforcing the ADA (attorney’s fees) have become more important and more desirable than the end (accessibility for disabled individuals).’

Most of the remainder of the opinion focuses on the discrepancies in Doran’s responses to interrogatories, his responses to questions in deposition three weeks later, and his testimony at trial, in which key details — such as how often and when he had actually visited the Mission Viejo Del Taco — slipped and slid uncontrollably. Highlights:

* Doran first went to Del Taco #415 in Spring of 2002 or in Spring of 2003, unless his first visit was in 1988.

* Prior to filing suit, he went to the location twice, or perhaps three times, or possibly just once, although he may have gone there on as many as five or six occasions.

* “Mr. Doran’s complaint refers to objects — display racks and vending machines — which do not even exist at Del Taco restaurant #415.”

* “When Mr. Doran stated that he ordered an enchilada to eat during his alleged visit, he must have been testifying about a trip to a Taco Bell restaurant since Taco Bell — and not Del Taco — serves enchiladas.”

* “When describing the barriers he encountered at Del Taco restaurant #415, Mr. Doran stated that the hand dryers in the restroom were located too high. . . . Because Del Taco restaurant #415 does not have hand dryers in its restrooms, it is clear that Mr. Doran was testifying about a visit to another restaurant, or place of public accommodation, when asked to identify the barriers he encountered.”

* “When asked if there were any fast food chains that Mr. Doran frequented that he had not sued, he replied that he had not sued Kentucky Fried Chicken. In fact, Mr. Doran has sued Kentucky Fried Chicken. When asked to try again, Mr. Doran replied that he had not sued Jack in the Box. Although apparently unbeknownst to him, Mr. Doran has sued Jack in the Box also.”

(Doran v. Del Taco, opinion in PDF format courtesy Decs & Excs; post, Jul. 18). For more on the dubious practices of ADA filing mills, see our disabled rights page.

Filed under: ADA filing mills, disabled rights, Kentucky

Resisting a mass ADA filer

Businesspeople in rural Alpine, Calif., are trying to organize for self-protection against San Diego County attorney Theodore Pinnock, who’s filed at least thirty disabled-rights complaints against enterprises in the town. “Last year, he sent 67 letters to businesses in the historic town of Julian, alleging violations of ADA accessibility requirements. At that time, he demanded between $2,500 and $4,000 in attorneys fees from each of the businesses.” (Jennifer Morse Roback, “Standing up to the disability police”, syndicated/TownHall.com, Apr. 10). More on California ADA filing mills: Mar. 18, May 31, and Jul. 12, 2005, among many others.

Filed under: ADA filing mills, disabled rights, San Diego

Wisconsin ADA suits, cont’d

The Appleton Post-Crescent has now completed publishing its investigation of the Ms. Wheelchair America pageant, including the pageant’s apparent role in client recruitment strategies for the Florida-based law firm of Schwartz Zweben & Associates (see “Behind a pageant, busy lawyers”, Jul. 21). The overall series roundup can be found here; among the more topical stories in the series are “Law firm’s ties to pageant”, Jul. 16 (firm filed 54 lawsuits on behalf of Jaclyn Kratzer, Ms. Wheelchair Pennsylvania 2003, and 37 lawsuits on behalf of Jeri Wasco, coordinator of the Ms. Wheelchair Washington D.C. pageant); J.E. Espino, “Businesses settle suits out of court”, Jul. 17, and Ed Lowe, “Local lawsuits trigger debate over ADA compliance”, Jul. 24 (quotes me on the question of whether serial complainants were just really unlucky or went out in search of reasons to sue).

Filed under: ADA filing mills, Pennsylvania, Schwartz Zweben, Wisconsin

Behind a pageant, busy lawyers

Representatives of the Hollywood, Fla.-based law firm of Schwartz Zweben & Associates have played a substantial role behind the scenes in helping organize, promote and support the Ms. Wheelchair America pageant and some of its state affiliates. And lawyers with the firm have filed more than 200 lawsuits in at least seven states and the District of Columbia on behalf of at least 13 pageant participants, “including state and national titleholders, state coordinators and pageant judges”. Among them: more than two dozen filed in Wisconsin’s Fox Valley since December on behalf of local coordinator Gina Hackel. In March, Janeal Lee of Appleton was stripped by pageant authorities of her title as Ms. Wheelchair Wisconsin; she believes it is because she was critical of the pageant’s role in lawsuit-promotion, although pageant coordinators deny that and say she broke a rule against being photographed out of her wheelchair.

Schwartz Zweben “also conducts seminars instructing contestants on pursuing their legal rights under the disabilities act. Lee remembered a lawyer flying in to give the Wisconsin contestants such a talk at the January pageant in Green Bay.” “The people that are the lawyers, I really like them. We got along,” said Lisa Wartchow, Lee’s 2003 predecessor as Ms. Wheelchair Wisconsin. “But I got the feeling they were there specifically to see if any of us … could bring them to our town and find cases for them.”

To verify Hackel’s claims of ADA violations in the Fox Valley, the law firm retained Ms. Wheelchair Florida 2002 Colleen Macort as a consultant, and she visited the businesses last fall, Zweben said.

Macort, who was named as a plaintiff in 63 ADA accessibility lawsuits filed in Florida by the firm over the past three years, also helped prepare the Wisconsin pageant won by Lee.

The Appleton paper (which is kind enough to quote me as part of its coverage) promises a four-part investigation, of which this is Part 1. (Ed Lowe and J.E. Espino, “Pageant, law firm closely linked”, Appleton Post-Crescent, Jul. 17). For more on mass filings of suits under the Americans with Disabilities Act and parallel state and local statutes, see Mar. 18, May 31 and many other entries on our disabled-rights page.

Filed under: ADA filing mills, chasing clients, disabled rights, Schwartz Zweben, Wisconsin

“Users of Assistance Dogs Leave a Trail of Lawsuits”

Erma Miller has filed 21 discrimination claims in southern California over alleged failure to serve her because of her assistance dog. Some defendants suspect a scam: Miller regularly alleges that the failure to permit entrance to the dog meant she couldn’t use the restroom and soiled herself. They’re also suspicious of Miller’s “practice of providing Rottweilers to other people, who took the dogs to businesses, got bounced and filed lawsuits,” and hints that her disbarred-attorney ex-con husband has a hand in the litigation. Lynn Stites had served eight years for a multi-million-dollar litigation-related insurance fraud scheme out of a Grisham novel:

During the 1980s, Stites organized a clandestine network of attorneys who infiltrated complex civil cases in Los Angeles, Orange and San Diego counties by getting insured defendants to hire them in place of their insurance company lawyers.

Posing as independent and, at times, snarling adversaries, they worked in concert to manufacture new legal controversies so that lawsuits would grow in complexity and cost.

In some cases, the lawyers paid kickbacks to clients for the right to defend them on the insurers’ dime. Stites essentially franchised the litigation, directing strategy and assigning lawyers to various defendants. His minions, in turn, kicked back a cut of their take—paying in cash, precious metals, and improvements to his house.

Three cases are scheduled for trial in the next few months. Miller has already collected six digits worth of settlements, but a suit against Marriott did not go as well:

As part of her deposition, Marriott lawyers videotaped Miller with Giggy, the Rottweiler mix involved in the Marriott suit and several others. Giggy could not obey commands to sit, to pick up Miller’s cane or to help her through the door.

(Myron Levin, LA Times, Jul. 10). More on service dog suits: May 5 and links therein.

Disclosure: At my former firm, I represented Marriott in unrelated litigation. As with all my posts, I speak for myself, and not for my current employer, my former employers, nor my former clients.

Filed under: ADA filing mills, disabled rights, Lynn Stites, San Diego, service animals

ADA filing mills

Seems they’ve now arrived in Sacramento and nearby Solano County: Ron Wilson and Byron Chapman, who say they’re disability rights activists, “together have filed more than 100 ADA lawsuits in Sacramento federal court in just the past four years. In some cases, the lawsuits come without warning.” “The number he quoted to me was $75 an hour, he’ll do the consulting,” said Vacaville businessman Tom Phillippi, of Wilson. “You pay him $75 an hour as a consultant and you won’t necessarily face him in court.” (“Businesses Come Together To Fight Disabled Lawsuit Abuse”, KXTV, Mar. 8). For more, see Mar. 18 and many other posts linked from there.

Filed under: ADA filing mills, disabled rights

ADA filing mills: “drive-by lawsuits”

AP reports on the thriving business of mass-complaint-filing under the Americans with Disabilities Act, citing examples from Nebraska and Oklahoma as well as more familiar filing-mill locales such as California and Florida. As in the recent California case, however (Jan. 8), some judges are not pleased at what they see:

U.S. District Judge Gregory Presnell of Orlando, Fla., noted in a ruling last year that Jorge Luis Rodriguez, a paraplegic, had filed some 200 ADA lawsuits in just a few years, most of them using the same attorney.

“The current ADA lawsuit binge is, therefore, essentially driven by economics — that is the economics of attorney’s fees,” Presnell wrote. He said Rodriguez’s testimony left the impression that he is a “professional pawn in a scheme to bilk attorney’s fees” from those being sued.

(Kevin O’Hanlon, “‘Drive-By Lawsuits’ Raise Business Concern”, AP/San Francisco Chronicle, Mar. 17).

Speaking of the California saga of Jarek Molski (Sept. 21, Nov. 27, Dec. 12, Jan. 8), last month U.S. District Judge Edward Rafeedie extended from Molski to his lawyer, Thomas Frankovich, a requirement to obtain court permission before filing more suits under the act, a sanction ordinarily reserved for the most vexatious and troublesome litigants. Reports the Los Angeles Daily Journal:

The Los Angeles judge accused Molski and Frankovich of seeking quick cash settlements by filing a suspicious number of lawsuits in short periods of time. Their suits alleged handicap-access violations such as steep ramps, heavy doors and narrow hallways.

Rafeedie noted that the complaints are identical, right “down to the typos.” He said he believed the injuries alleged by Molski “are often contrived.”…

Rafeedie criticized at length Frankovich’s practice of sending letters to defendant business owners at the outset of litigation, urging them to settle the cases before hiring defense lawyers.

According to Rafeedie, Frankovich told the defendants that they did not have good legal defenses to the disability claims and that their insurance carriers could cover any damages.

Rafeedie said the letters were unethical and misleading.

However, Molski and Frankovich’s side of the case has retained prominent civil-rights attorney Stephen Yagman, and Yagman says well-known Duke lawprof Erwin Chemerinsky is also joining the plaintiff’s team, so who knows where matters are headed next. (John Ryan, “Jurist Finds Lawyer’s Conduct ‘Plainly Unethical'”, Los Angeles Daily Journal, Feb. 8, not online). More: blogger Patterico is among Yagman’s non-admirers (Jun. 3, 2004).

Filed under: ADA filing mills, disabled rights, Jarek Molski, Nebraska, Oklahoma, Stephen Yagman, Thomas Frankovich