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ANALYSIS
March 2, 2009
Sagging Index no longer reflects what’s going on in the market, some say, Replacements? Google it, to start.
March 2, 2009
Downward price spiral will actually boost the cost of capital for most companies. CFOS, take note.
March 2, 2009
The latest bailout at AIG could be a preview of how the president will deal with Wall Street.
March 2, 2009
No corporate defaults. Big debt offerings. Percolating CP issuance. Things may be looking up in the capital markets.
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May 28, 2007 12:01 AM ET
iStockphoto
Called “drive-by lawsuits” by detractors, the legal actions are filed by a small group of attorneys and plaintiffs and seek legal fees and damages, where allowed, for alleged infractions of the law that sets the standards for access to public facilities by people with disabilities. In congressional testimony earlier this month, Karen R. Harned, executive director of the National Federation of Independent Business, lumped these ADA cases in with a group of what she termed “frivolous lawsuits” that are burdening business. And Walter Olson, a senior fellow at the Manhattan Institute, a conservative New York City think tank, and author of a blog called Overlawyered, has described the cases as a “shakedown racket.” Thousands of such lawsuits are working their way through federal courts around the country. In northern Ohio, for example, a single disabled person is named as plaintiff in 50 pending or recently closed lawsuits. A California man has been declared a “vexatious litigant” and had his right to sue restricted after he filed three suits over violations that he allegedly encountered on the same day. The disabled man, Jarek Molski, is still listed in nearly 400 disabilities violation cases that are either active or settled in recent years. The San Diego-based Lawyers Against Lawsuit Abuse states on its website that it is monitoring 7,000 such lawsuits in California alone. One Cleveland attorney who has defended several suits filed by a group called Disabled Patriots of America, a Florida non-profit, said it appears that the generation of legal fees is the prime motive for these suits. “The end result may make some sense, but their tactics are flat-out wrong,” said Bruce Hearey, whose daughter uses a wheelchair. “This particular group’s tactics are more about remunerating the lawyers than fixing anything.” Legal fees in these cases can run from $10,000 to $20,000, said Mr. Hearey, an attorney with the Cleveland office of law firm Ogletree Deakins. Oftentimes, individual plaintiffs are joined in the lawsuits by an organization that says it represents disabled people. Among the groups named in the slew of suits are Access for the Disabled Inc., Access Now Inc., Access 4 All Inc., Access for America Inc. and Disabled Patriots of America. Mr. Olson contends these organizations are shams created in the hope that the suits may be viewed more favorably if a non-profit organization is involved. Indeed, an attorney who has filed numerous lawsuits in Ohio for a plaintiff associated with the Disabled Patriots group is listed by the Florida Secretary of State as filing the incorporation papers for the group. The suits typically argue that the plaintiff was denied “full enjoyment” of the facility because some parts of the property were inaccessible to the plaintiff, which would be a violation of Title III of the Americans with Disabilities Act of 1990 and similar state laws. The disabilities act requires most places of public accommodation to eliminate barriers to the full use of the facilities by the disabled. The laws lay out specific guidelines. Among the typical violations found by plaintiffs are not enough parking places for people with disabilities, no accessible routes from the parking area to the establishment, doorways with insufficient maneuvering clearance and hotels lacking rooms with showers or toilets that can be used easily by people with disabilities. The cases rarely reach a courtroom, and when they have, they often result in victories for the defendants and stinging rebukes of the plaintiffs from judges. Federal Judge Gregory A. Presnell of Orlando, Fla., complained in an opinion about a plaintiff who filed a lawsuit less than a week after his attorney verified the ADA deficiencies in an Orlando hotel without first notifying the hotel of the problems. “Wouldn’t conciliation and voluntary compliance be a more rational solution?” the judge wrote. “Of course, but pre-suit settlements do not vest plaintiffs’ counsel with an entitlement to attorney’s fees.” While the suits typically settle for legal fees, in at least seven states, including California, plaintiffs can collect modest damages. In California, the maximum damage award in an accessibility case is $4,000. Calls to Todd Shulby, who has filed suits in Florida, Georgia and Ohio, were returned by his co-counsel on many cases, Guy M. Shir of Boca Raton, Fla. Mr. Shir defended the suits that have been filed and was unapologetic about filing without first writing a letter of complaint. In the early years of the ADA, Mr. Shir said, a disabled person would send a letter to a property owner asking that access be brought up to ADA standards. “The disabled person would get a letter back thanking them for their concern and saying they would take appropriate action. But [the letter] would go into the circular file [and nothing would happen]”. Now, he said, property owners have had 17 years to understand the guidelines and make changes. They should understand the law. But Mr. Olson, who has been following these cases for several years, said the ADA guidelines are not always easy to put into practice. “One consultant may give you a clean bill of health and another may find eight more things [that don’t meet the law’s guidelines].” Some disabled rights groups are critical of these lawsuits, while others prefer to give litigants the benefit of the doubt. Andrew Imparato, president of the 100,000-member American Association of People with Disabilities, spoke out on the issue during a dispute in California over a group of cases filed by Mr. Molski, which have been before an appeals court. “There are these individuals and boutique firms that make a business out of filing 75 claims at a time. It leads to a strong backlash against the ADA, and it can do harm to the cause of increasing access for those with disabilities,” Mr. Imparato said. “The point of this law is not to shake down businesses. The point is to improve accessibility.” FW
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