What is being labeled as predatory was the scheme being led that had the lawyers husband fake a disability in order to launch these lawsuits (200 in one year, over 2000 total). And that it was specifically targeted at small businesses of a size/condition that they would really be susceptible to the lawsuits.
There was also some light witness tampering and evidence destruction as a part of the RICO case against this attorney, so yeah, I think in this one case, there really was some wild stuff going on.
In this case the specific lawsuit against this coffeeshop was labeled predatory which was filed by "a disabled San Jose man", which seems to be someone other than the attorney's ex husband Ronald.
They're apparently asking for something on the order of $60,000 for not being able to go into a cafe and get a cup of coffee. That seems quite far beyond the damages incurred. sounds predatory to me.
That is statutory damages, not compensatory damages. Statutory damages are written into the statue, not a payment for damages actually incurred.
The ADA is mostly enforced by private plaintiffs, that's the way the law was written.
Nationally the ADA doesn't allow for private plaintiffs to profit from ADA lawsuits, however, a few states (like California) have statutes that do.
Of course, a big problem is the businesses don't have a mandatory warning with a grace period to become compliant, it's just now you have a lawsuit. This can create "professional plaintiffs." Then again, the ADA is a civil rights law, and other civil rights laws aren't like that, you don't get "one free racial discrimination," and I don't think that many people would want that.
Why does the plaintiff receive the statutory damages? This is similar to a fine in that they are support to force the violator into complying, not to give a payout much larger than the financial loss of the victim.
The obvious solution here is that the government takes a portion of this money to remove the gambling-like incentives.
>Combined with the California Disabled Persons Acts, disability access plaintiffs are allowed to tack on state claims for money damages onto requests for injunctive relief in ADA lawsuits. The act allows plaintiffs to claim treble damages with a minimum of $4000 per access violation plus attorneys fees.
Devil's advocate: If the lawyer did this pro bono or with only small profits, he would be celebrated as championing accessibility rights. Doing good for bad reasons.
I don't think there's anything wrong with customers demanding ADA compliance. But the accusation here is that the lawyer involved is creating rafts of complaints, possibly false ones, to extract settlement cash. That would indeed be predatory.
I think the ADA on the whole is good, but the burden can fall disproportionately on small businesses. An awful lot of people's favorite neighborhood businesses are more or less break even; as here, a sudden, large expense can be fatal. I'd prefer it if there were programs to help existing small businesses convert. Making society available to everybody is everybody's business.
Yes, it sounds like in this case there is systematic targeting of certain sized businesses in order to extract the maximum amount of cash. Big companies can afford compliance and lawyers. The little companies may not be able to.
Might even be a business possibility for someone knowledgeable with the law and how to demonstrate objective compliance. I thought in an earlier comment maybe a chamber of commerce could develop something, or some locals with disabilities who would like to be part of the process and maybe even used as witnesses.
When one person associated with the attorney is a plaintiff in 200 lawsuits, it does start to seem opportunistic.
Nevertheless, I can't understand why someone would open a cafe in 2007 at a site that wasn't compliant with a 1990 law without budgeting for bringing it into compliance.
> When one person associated with the attorney is a plaintiff in 200 lawsuits, it does start to seem opportunistic.
Wait, why? Certainly one would expect that a lawyer might have a specialization, say, ADA compliance. And you'd equally expect that a person in a wheelchair who is more likely to notice/care about ADA compliance.
It doesn't strike me as that odd, it just seems like, "Hey, why is the city I live in so busted for me? I thought there was a law that was supposed to give me access? Why is no one paying attention to that law?"
The problem is CA has opted to allow "citizen enforcement" via cash settlements instead of allowing grace periods or some other means of remediation. As noted in the article, if the goal was bring businesses up to code, in many cases a simple letter from the lawyer would suffice. But, that doesn't make money for the lawyer and her husband (who faked disabilities in order to sue).
Because the lawyer allegedly had her ex-husband pretend to be disabled in order to file the lawsuits.
Lawsuits require standing, which is defined as basically injury or adverse effect done to the suing party. Without that, you cannot sue(and expect to win).
OP said it starts to seem opportunistic, which I think is true, even if the party is actually disabled. Because the odds that a regular disabled person would encounter 200 unique buildings over a year that they couldn't access because of their disability seems quite slim.
And the opportunistic part comes in because these lawsuits are almost always "Fix the problem for $5*X, or pay me personally $X and I will drop the suit".
> Because the odds that a regular disabled person would encounter 200 unique buildings over a year that they couldn't access because of their disability seems quite slim.
I would guess the opposite, that 200 buildings seems low for what a person might encounter in a year that failed to be accessible. That's basically saying, "It's a roughly 4-5 buildings a week" which absolutely seems in the realm of possibility to me. Especially in a older part of town.
I think you're underestimating the size of 200. ADA compliance is a worthy cause, but at that level of effort I think it would make more sense to create an advocacy group and try to bring about compliance through public pressure than individual lawsuits.
Nevertheless, I don't have a lot of sympathy for the business owner in this case. If you open a business in a non-compliant site 17 years after the ADA went into effect, and 13 years later still can't build a ramp, it might be time for another business to occupy that site.
> The disabled man’s attorney, Tanya E. Moore, for years has been the subject of much scrutiny for suing thousands of small businesses across the South Bay, filing more than 1,400 ADA cases in recent years. The suits have forced mom and pop shops like Cafe Crema to close, as many owners can’t afford to bring their businesses up to code or settle. A little less than three years ago, a beloved San Jose staple, Time Deli, had to shut its doors for the same reason.
> About two years ago, Moore was faced with a federal racketeering civil lawsuit for filing lawsuits based on “false allegations” of disability and injury, first reported by the Fresno Bee.
I wonder how many businesses will be left when Moore is done.
How is this predatory? The law has been on the books for some time. This subthread seems to be taking issue with this lawyer's specialty - helping disabled folks get access where they are denied it unjustly. The real anger should be toward folks who don't want to follow the law. It is useful to have an expert on your team to get justice. If you are going to sue for ADA violations, would you rather have a corporate finance expert or an ADA compliance expert?
If compliance were the goal, then I would be inclined to agree with you. However, this lawyer is suing first without any notification first that the shop is non-compliant. That's what makes it come across as predatory.
> These “shakedown” lawsuits, added Morin, are often based on small, “technical violations” that can be easily fixed if a letter is sent to the business owner. But under California law, a disabled person cannot claim money if they send the business owner a letter with their complaint first.
It looks like if a claimant sends a letter they would not be able to sue for damages. That seems like it might really limit any perspective plaintiff's options.
That depends. Is the plaintiff's goal to encourage a business to comply or is it to get paid? If compliance was the goal, sending a letter would always be the first step.
But if a claimant does send a letter and that letter gets ignored, what's their recourse if they can't sue? Send another, more angrily worded letter? That will show the defiant business owner what for! They'd likely have to find someone else to do file suit.
I'm not a lawyer and I'm sure that article is simplifying things, but using the information given, I would also sue first.
I don't see anything predatory there? 1,400 businesses were potentially breaking the law and denying access to people with disabilities, shouldn't they be the subject of suits?
No, lawsuits require standing. If nobody is actually harmed, there is nothing to sue over. Where this might factor into this ethically is that these building may not have been compliant with the law, but they might not have had problems because they were close enough to legal requirements that people with disabilities did not have actual problems using the facilities, or other situations that in practice made it a non issue.
For example, ramps must be 36 inches wide. If it was not possible or feasible for the business to change a ramp that was 34 inches wide, that's unlikely to cause actual problems for someone, so they would have no reason to sue, but if someone is faking a disability to qualify for legal standing, whether they actual had problems is of little consequence, they are already committing fraud to qualify, what's a bit more to fake a situation where they were caused harm?
ADA has affordances for "nearly compliant" facilities.
§ 36.304 Removal of barriers.
(d) Relationship to alterations requirements of subpart D of this part.
(3) If, as a result of compliance with the alterations requirements specified in paragraph (d)(1) and (d)(2) of this section, the measures required to remove a barrier would not be readily achievable, a public accommodation may take other readily achievable measures to remove the barrier that do not fully comply with the specified requirements. Such measures include, for example, providing a ramp with a steeper slope or widening a doorway to a narrower width than that mandated by the alterations requirements. No measure shall be taken, however, that poses a significant risk to the health or safety of individuals with disabilities or others.
Thanks for the additional information. Do you know what "readily achievable" means legally? I suspect it means "can not feasibly be accomplish on the property in question", such as if there's no way to widen a door given load bearing walls, or if a ramp of the appropriate specifications would go past the edge of the property. I imagine "it's too costly to do and keep this business functioning" is not a valid reason, given the examples we are seeing of businesses closing.
What I think it comes down to is whether a real person with disabilities thinks it's worth bringing and/or continuing the suit. Someone bringing a suit to make their life better (and the lives of people in similar circumstances as well), might take things into consideration like whether another business is likely to use that location any time soon if a large outlay is required to fix the problem, and whether removing a local business for everyone is a good solution. Someone bringing suit just for monetary gain (which can be done by someone with a real claim, I understand) may be less likely to do so, resulting in a net loss for the community.
> Do you know what "readily achievable" means legally?
It's quite clearly defined in statute (and includes cost):
> The term "readily achievable" means easily accomplishable and able to be carried out without much difficulty or expense. In determining whether an action is readily achievable, factors to be considered include—
> (A) the nature and cost of the action needed under this chapter;
> (B) the overall financial resources of the facility or facilities involved in the action; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such action upon the operation of the facility;
> (C)the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and
> (D) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the covered entity.
Thanks for the clarification. I'm left confused about why this is happening then. It seems well designed to not allow for the situation we see described here, yet this situation is happening and similar situations are referenced.
That leads me to believe one or more of:
a) the case cited here has more extenuating circumstances that are not being reported, which I see as likely as articles have a point of view to express and I'm willing to believe the author may leave out information they deem not contributing to that point (whether through malice or incompetence)
b) there are additional laws at the state or local level which are less lenient
c) there are other parts of this law or other Federal laws which interact in a way limiting or making ambiguous portions of this law
d) there is specific case law that severely limits how these escape valves are used in practice
I have no idea how any of these apply, if any do, but it's odd that there are specific allowances for businesses to no be forced to shut down, yet, we have examples of exactly that.
I'm looking at the picture in the article. You absolutely could not get a wheelchair up to that door without people carrying it. I'm aware of standing, and in this case it seems pretty clear cut.
>>> 1,400 businesses were potentially breaking the law and denying access to people with disabilities, shouldn't they be the subject of suits?
> I'm looking at the picture in the article. You absolutely could not get a wheelchair up to that door without people carrying it. I'm aware of standing, and in this case it seems pretty clear cut.
In this case? Maybe. You made a statement about all the cases they brought. I responded to that general statement, not this specific case.
It's possible every suit they brought against a business was for a situation where people with disabilities really were harmed. If that's the situation, I'm not sure why someone with a real disability didn't bring the cases then.
There are reasons why people are required to have standing to bring a case. I think it's pretty obvious what some of those reasons are.
The theory of the ADA is that rather than just enforce everything via bureaucracy, we'd give individuals the right of private action to push for the accommodations they need. Then we get a hopefully-good level of accommodation without a lot of the kind of waste that goes with central planning.
But if somebody is going to use the legal system to make a lot of money by generating spurious complaints for every business in an area, then that's not the right mechanism. If every business should be immediately compliant, we should just make it part of the building code and/or part of the business licensing process.
It’s not necessarily about how much damages they suffered. Statutory damages also serve as a deterrent and a way of motivating plaintiffs to pursue ADA compliance suits.
In CA’s cast it looks like statutory damages are up to 3x the damages, with a minimum of $4000. That minimum can apply multiple times, as in Hubbard v. Twin Oaks Health and Rehabilitation.
>Plaintiff asserts that, because the minimum statutory amount is $4,000.00 per violation, and she encountered the architectural barriers a minimum of 15 times, she is entitled to damages in the amount of $60,000. Given that defendant does not present any viable evidence to the contrary, plaintiff will be awarded the statutory minimum of $4,000.00 per violation, totaling $60,000.
The question is whether they were being predatory. Visiting 15 times to put a multiplier on statutory damages, which were already 500x the actual damage, is predatory.
$4000 is a nice kick in the pants but there should be a large delay before the same person can get a second instance of statutory payout, if ever.
If businesses only had to pay the actual provable amount of damages caused by non-compliance, few businesses would find it remotely worthwhile to comply. That's why the ADA allows for more.
Yes and no. Businesses that aren't ADA-compliant are violating the law. But the motives of many of those filing are also suspect. From the article:
"The disabled man’s attorney, Tanya E. Moore, for years has been the subject of much scrutiny for suing thousands of small businesses across the South Bay, filing more than 1,400 ADA cases in recent years...The attorney who filed the lawsuit, Moji Saniefar, claims Moore’s ex-husband Ronald, who is a plaintiff in more than 200 filed cases, faked a disability in order “to collect quick settlements."
So in this case, the filing attorney is being sued for fraud? (I'm not a lawyer). Not a good look. But going on..
"...in California unscrupulous lawyers bypass the law’s good intentions by taking advantage of the state’s generous payouts to disabled individuals who sue, often targeting hundreds of small businesses at once, according to Sacramento-based small business defense attorney Rick Morin. For many ADA cases, the minimum in statutory damages starts at $4,000."
Sounds like patent troll tactics. Damages large enough to add up to serious money at scale, but small enough that they aren't worth fighting for the defendant.
"These “shakedown” lawsuits, added Morin, are often based on small, “technical violations” that can be easily fixed if a letter is sent to the business owner. But under California law, a disabled person cannot claim money if they send the business owner a letter with their complaint first."
Which means the money is more important than fixing anything. A business that couldn't afford to become ADA-compliant can definitely not afford to fix it after paying a settlement. And it's very well possible that money that could have gone into fixing the problem for all future disabled customers (surely the actual point of the law) is instead going to attorneys and plaintiffs.
Bottomline: no one comes out looking good in this particular case. If this cafe's ADA retrofit is going to cost $100k then it wasn't an easy fix and the business owner should have done better research into the law before renting/buying that location.
But there also seems to be a non-zero number of BS lawsuits incentivized by the way the law is right now.
What you hear from people "on the ground" is that ADA is written in a way that makes it very difficult to comply with.
An experienced ADA "predator" can find some technical violation in most any place of business, and make a profit suing for it. Normally, these technical flaws have no real impact on accessibility for actual disabled people. It's just a legal quirk.
Or so I've read/heard in a few places. I have no personal insight, so take this post FWIW!
The problem, according to the article isn't that, it's some law firms are doing this in a predatory way.
"But in California unscrupulous lawyers bypass the law’s good intentions by taking advantage of the state’s generous payouts to disabled individuals who sue, often targeting hundreds of small businesses at once, according to Sacramento-based small business defense attorney Rick Morin. For many ADA cases, the minimum in statutory damages starts at $4,000."
