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Do Calif.'s ADA Laws Lead to Increased Access or Litigation Abuse?

This past weekend, the Sacramento Bee carried a lengthy article, Visionary law's litigious legacy (11/12/06), on how California's implementation of the federal Americans with Disabilities Act (ADA) has lead to litigation over ADA violations, which end in payouts to individual plaintiffs and lawyers rather than access for the disabled. What makes the California system unique is that in contrast with the federal ADA statute, California allows for attorney fees and fines for violations:

Under the federal ADA, private plaintiffs are entitled only to injunctive relief -- that the problems be fixed -- plus attorneys' fees. Under California's Unruh Civil Rights Act, plaintiffs can collect a minimum of $4,000 in damages per violation beyond attorneys' fees. A related state code, the Disabled Persons Act, allows a plaintiff to recover three times the actual damages, or a minimum of $1,000, with attorneys' fees awarded to the prevailing party at the judge's discretion.

As a result, rather than ask businesses to correct an ADA violation to allow for access, many lawyers approach noncompliant businesses seeking a payout to avoid filing a lawsuit. And rather than risk litigation and payment of the fine, many businesses comply. Says Kevin Maher of the American Hotel and Lodging Association:

"What's happening is that a few attorneys are kind of gaming the system. They see an opportunity to work toward these out-of-court settlements and are just filing these lawsuits by the handful, and hope businesses will settle and go away."

Others disagree.  From the article:

Many disabled citizens reject that charge, arguing vehemently that businesses have had more than enough time to comply with the law. This, they say, involves nothing less than their civil rights."If they obeyed the law, there wouldn't be any lawsuits," said Laura Williams, president of Californians for Disability Rights, the state's oldest and largest advocacy group for the disabled.

What's particularly disturbing about the ADA litigation is that it is dominated by a handful of plaintiffs and their lawyers, who file multiple suits. For example, the article notes:

Nearly 80 percent of the access suits filed in federal court last year were handled by just 10 lawyers or law firms. Together they dominate the ADA litigation in the nation's most populous state -- home to an estimated 2.5 million people with physical disabilities.  California's two busiest access lawyers in the federal courts both practice in the Eastern District, based in Sacramento. Scott N. Johnson, a 44-year-old quadriplegic attorney from Carmichael, and Lynn Hubbard III, a 66-year-old attorney based in Chico, filed 277 lawsuits between them in 2005[...]

The same names pop up so frequently on court documents that even judges remark on it. Sherie White, a 40-year-old quadriplegic woman from Corning, has been the plaintiff in 60 suits since 2003; Gypsie Jones, a 34-year-old Anderson woman who broke her back in a car accident 17 years ago, is named in 162. Ron Wilson, 70, is behind at least 60 suits in and around Dixon as part of a virtual one-man crusade to bring businesses into compliance.

Not surprisingly, with so much litigation, it hasn't taken long for a client to sue his attorney. Phil Di Prima initially hired an attorney to bring suits on his behalf, but after winning money, he found that he still could not gain access to facilities. So he sued his attorney, accusing him of failing to ensure that properties were fixed, of falsely claiming that Di Prima suffered injuries and of failing to apprise Di Prima of settlement offers. 

Perhaps DiPrima's approach makes the most sense and offers the best solution to abuses of the ADA. As clients reclaim control of their ADA cases and make them about access, rather than money, California's problems with ADA abuse may correct themselves.

Posted by Carolyn Elefant on November 13, 2006 at 04:38 PM | Permalink | Comments (1)

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