ADA Trolls and Unintended Consequences

ADA Trolls
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In 2015, a plaintiff named Theresa Brooke filed more than 50 lawsuits against hotels in Arizona and California, claiming their swimming pools violated the Americans with Disabilities Act (ADA).  Each lawsuit started with a cookie-cutter complaint making nearly identical allegations.  She claimed to have suffered at least $5,000.00 in damages per swimming pool and incurred at least $3,750.00 in attorneys’ fees for the few minutes necessary to prepare each complaint.

Brooke was represented by attorney Peter Strojnik.  Serial ADA-litigation became his stock-in-trade.  In 2016, he began filing lawsuits with Advocates for Individuals with Disabilities, LLC (AID).  They used David Ritzenthaler as the nominal plaintiff and filed nearly 2,000 cases within two years.  Strojnik said he intended to file at least 8,000 more.

Jaburg Wilk

Ritzenthaler alleged that Arizona businesses failed to comply with ADA parking lot requirements.  The alleged violations were “minor, even trivial.”  Advocates for Individuals with Disabilities, LLC v. MidFirst Bank, 2018 WL 3545291, at *2 (D. Ariz. July 24, 2018).  Some claimed a handicap accessibility sign was infinitesimally lower than required; others incorrectly calculated the heights in question.

Each complaint “followed the same script right down to the same typographical errors.”  Id.  They also “failed to allege a single harm to Ritzenthaler, let alone that he ever visited [the] premises – or even that he was disabled.”  Id.  Courts began ordering Strojnik to explain why the cases should not be dismissed.

Outside of court, Strojnik refused to dismiss unless defendants paid attorneys’ fees, often “no less than $5,000.”  Larger companies could settle for this nuisance value.  But the demand was more than others could readily afford.

Outraged business owners called for change.  The outcry sparked an expose by ABC15 investigative reporter Dave Biscobing and caught the attention of the Arizona Attorney General’s Office, which moved to dismiss over 1,000 cases en masse. Troubled that this “extortionate practice has become pervasive,” id., courts dismissed the lawsuits.  Some granted sanctions against Strojnik, Ritzenthaler and AID.

Although courts recognize that serial ADA litigation can legitimately promote equal access, they have shown less interest in allowing equal access laws to be used for personal profiteering.  This may be less of a concern under the ADA, where plaintiffs may not recover damages (they may, however, recover fees).  But the Arizonans with Disabilities Act, A.R.S. §§ 41-1492 through 41-1492.12 (“AZDA”), allowed plaintiffs to seek damages, thus upping the risk of potentially extortionate schemes.  Ritzenthaler’s lawsuits often sought $5,000 in damages – meaning he allegedly suffered a combined $5-10 million in damages based on parking lot signs.

Although courts recognize that serial ADA litigation can legitimately promote equal access, they have shown less interest in allowing equal access laws to be used for personal profiteering.

Many businesses learned of compliance issues only upon receipt of the lawsuits.  Curing the alleged defect seemed to be less important than filing suit and demanding money.  This lack of open and honest dialogue led to outrage and resentment, which undermines the very purpose of laws designed to promote equal access.

The Arizona legislature changed the AZDA “in response to thousands of lawsuits and complaints that were filed against Arizona businesses by the same lawyers and generally the same plaintiff.”  2017 Ariz. Sess. Laws, ch. 175, § 4.  Three changes are noteworthy.

First, the plaintiff must be “aggrieved.”  The old law allowed lawsuits from any “person who believes” an equal access violation has occurred.  A.R.S. § 41-1492.08(A) (2011).  Strojnik argued “a Sherpa in Tibet would have standing . . . despite lack of any injury to the Sherpa.”  AID, 2018 WL 3545291, at *3.  Now only an “aggrieved person” may sue, which should mandate an actual and particularized injury.  Id. (citing A.R.S. § 41-1492.08(A) (2017)).

Second, the AZDA requires the aggrieved person to (1) give written notice to the business, and (2) allow the business thirty days to cure the defect before filing suit.  A.R.S. § 41-1492.08(E).  This strikes an appropriate balance by placing equal access over opportunistic litigation.  Many businesses will make changes once put on notice, and not all alleged violations are borne out upon inspection.  The change also preserves the ability to pursue civil rights litigation for recalcitrant noncompliance.

Third, a court may impose sanctions if an AZDA case is filed “for the primary purpose of obtaining a payment from the defendant due to the costs of defending the action in a court.” A.R.S. § 41-1492.09(H) (2017).  As one court aptly observed, this “might as well have been called the Strojnik Amendment.”  AID, 2018 WL 3545291, at *4.  Courts now have the authority to shut down AZDA schemes meant to extract nuisance value settlements and hopefully deter frivolous lawsuits in the future. Matthew Hesketh and John Alan Doran

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