ADA Litigation Update: Desperate Measures in Yuba City

Perhaps no type of litigation surpasses the Americans With Disabilities Act in illustrating what can happen when a well-intentioned statutory scheme designed to help people is exploited by plaintiff’s lawyers.  Almost everyone is familiar with the stories of a small businesses having to shell out significant penalties and attorney fees because a wheelchair ramp was two degrees too steep or a counter a half inch too high.  The benefits to the disabled clients are somewhere between miniscule and non-existent but the lawyer laughs all the way to the bank, cashing a fat check after filing a “cookie cutter” lawsuit. 

No where have these abusive ADA lawsuits been filed with greater frequency than in California. While I have not independently confirmed this, ADACrisis.com reports that 42% of all ADA cases in the country are filed here in California.  That is a staggering statistic.

Governor Brown recently took a step to curb ADA lawsuit abuse by signing Senate Bill 1186.  A good summary by Cybele Thompson and Rex Hime with the California Business Properties Association of the bill is available here.  But there is much more that needs to be done to curb the abuses of unchecked litigation shakedown tactics.

I have defended many ADA lawusits and have read so many ADA reported decisions, articles and notes summarizing new case filings that I thought myself immune from shock in this area.  But a few weeks ago, a story on the Drudge Report caught my eye.  A California city has earmarked $15,000 of its operating budget to “pay off” an ADA attorney who is plaguing merchants and businesses in the city.  That’s correct—it is a global settlement of sorts for the merchants in the city to make this private plaintiff’s lawyer go away.  The full story is available here courtesy of the Sacramento Bee. 

While I’m sympathetic to the concerns that prompted the city to take this unusual step, there are some serious problems with going down this road. 

  • It violates public policy for an attorney to accept payment in exchange for his or her agreement to not file a certain type of lawsuit in the future.  Parties may settle and thereby bar claims that are released, but the attorney is to remain unencumbered.  What the city might do is pay the attorney to be a consultant on ADA issues for the city or a group of businesses and thereby create a conflict of interest preventing him from bringing claims in the future.  I wonder if anyone in the Yuba City government thought of that.
  • Apart from these technical and public policy concerns, the practical effect will be to set a precedent.  While this particular city may have been this lawyers’ hunting grounds, there are hundreds of ADA law firms that will also line up.  Paying off lawyers is like feeding a kitten that shows up at your back door—it’s all cute and harmless when it’s one but there will surely be many others who will expect similar treatment.

I look forward to following this story to see how all this works out up in Yuba City.  Apart from the legal issues triggered by this objective, it’s a sad commentary our state of affairs when municipal governments concerned about businesses shuttering their doors because of frivolous and abusive lawsuits feel compelled to enter the fray and pay off plaintiff’s lawyers to go away.