ADA ACCESS SHAKEDOWN CLAIMS
Federal judge Vince Chhabria ordered three disabled/wheelchair bound frequent plaintiffs and their lawyers to prove they are entitled to bring their lawsuits in federal court, specifically because the plaintiffs brought their federal claims under the Americans with Disabilities Act (“ADA”), the plaintiffs must prove that they genuinely expected to return to the places they sued, claiming they were inaccessible because of their disability. Those plaintiffs had pending at the time at least nine different cases in which they were represented by the same San Diego law firm, Potter Handy LLP. Potter Handy was also sued by district attorneys in SFO and LA for filing hundreds of fraudulent lawsuits under the ADA.
Epps & Coulson, LLP has represented real estate owners and tenants sued by plaintiffs alleging ADA access claims. The outcome of the district attorneys’ lawsuit, if the DAs prevail, will be a welcome deterrent to ADA mill law firms’ and serial ADA plaintiffs’ filing shakedown lawsuits. The DAs’ lawsuit seeks an order that would require the plaintiffs’ law firm to repay the amounts that defendants have paid to settle the allegedly fraudulent suits over the last four years.
One plaintiff filed more than 1000 lawsuits in one judicial district in 2021 and more than 4,000 since 2010 and was recently indicted for failing to pay taxes on his ADA settlements. While that plaintiff claims that he physically visited the location he sued, he personally encountered barriers to accessibility, and he says that he intends to return to each of them when the barrier to accessibility is remediated, you can do the math as to the almost daily filings of lawsuits. It is welcome that the judge directs the plaintiff to “substantiate” the allegation about an intent to return to the defendant’s establishment. In order for an ADA plaintiff to have standing to legitimately pursue the claim and seek an injunction, the plaintiff must prove injury by actions of the defendant and also that there is a real and immediate risk that he or she will suffer harm in the future if the injunction is not issued (i.e. that the plaintiff legitimately intends to return to the allegedly inaccessible establishment or location). This is key as the DAs’ lawsuit alleges that Potter Handy’s plaintiffs “almost never return to the businesses they sue after a settlement is reached” and the firm uses “false standing allegations to maintain their scheme of deceiving the courts and businesses they sue into believing they have federal standing.” We call this a shakedown.
Judge Chhabria’s orders all say that after the declarations are submitted, he will likely schedule an in-person evidentiary hearing “to test the veracity” of the declarations. Stay tuned. Epps & Coulson, LLP will update once this comes to a head.
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