‘Drive-by’ lawsuits flatten thousands
A year later and Amy Rowland, co-owner of the Bulldog bar and restaurant in Minneapolis, still feels depleted.
She forked over nearly $25,000, a sickening sum when owners have so many other uses for the money, to settle a claim that her business violated Title III of the federal Americans with Disabilities Act and the corresponding Minnesota statute—something she vehemently denies.
Yes, her business has recovered financially from the blow. “But it takes a personal toll on me as a business owner and as a human being,” Rowland told me.
“No matter how you slice it, you are affecting someone personally,” she adds, about plaintiffs’ attorneys like Paul Hansmeier, who filed the claim against her business and more than 120 and counting in Minnesota. “You can’t just say ‘it’s business.’ You can’t say ‘I’m not hurting people.’ It’s an unsavory and unsettling experience.”
Rowland is one of thousands of business owners across the country who have been slapped with such claims over the past year or two, which seems odd since the ADA—prohibiting discrimination on the basis of disability in the full enjoyment of any public place, among other things—has been law since 1993.
Why now? “What we’ve noticed is a cycle of these lawsuits,” says Steve Miller, an attorney with Fisher & Phillips in Chicago who helps clients defend against what some call drive-by lawsuits.
“Plaintiffs’ attorneys will let those lawsuits wade through the system,” Miller says. “They’ll file them in batches, and then as they resolve, they’ll file the next wave.”
Right now the wave is roaring, in states long a target for such actions but also those that have mostly been left alone. “It’s not unusual for plaintiffs’ attorneys to have a stable of people, where they go out and visit accommodations” and check for violations, Miller says. “It’s not unusual for them to have filed in excess of thousands of these lawsuits.”
In the first six months of 2015, 2,114 ADA Title III lawsuits were filed in the U.S., according to the law firm Seyfarth Shaw, and attorneys there predicted about the same number for the second half of the year. That means “the 2014 surge,” when such lawsuits increased 60 percent from the year before, “was probably not an aberration, but more likely, the new normal,” the firm says.
An obvious question pops up: Why don’t these owners simply fix their businesses, so anyone can use them regardless of disability? Hansmeier, whose firm names include Prenda and Class Justice, didn’t reply to my requests for comment, but he told City Pages last July that he represents “brave and determined individuals who are willing to stand up for their rights in the face of bigotry.” He called criticisms of his clients and tactics “pot shots” and said Minnesota has widespread ADA infractions.
Hansmeier faces a petition seeking to suspend or disbar him for previously filing multiple lawsuits against people downloading porn, on the grounds of copyright violation. The Minnesota Lawyers Professional Responsibility Board filed the petition last October. But regardless of his history, the point remains: If Mama can’t use the bathroom when you’re out for brunch, that’s against the law and a shame, too.
“This is a law that’s very important and should be enforced,” says Zach Crain, an attorney with Nilan Johnson Lewis in Minneapolis. “People who are impeded in their ability to enjoy public accommodations” should have a remedy.
But there is a big divide between legitimate cases and others. “It’s a matter of finding a process that is fair to those out there that want to comply, without creating this risk that their entire business may get flushed to benefit a few plaintiffs’ lawyers,” he says.
Crain also points out the term “drive-by” isn’t accurate anymore. “With Google maps you don’t even have to drive by. You can sit online and find businesses” that are out of compliance.
Rep. Ted Poe, R-Texas, has championed a bill called the ADA Education and Reform Act of 2015. He wants to amend the ADA, “to clarify the requirements for demand letters, to provide for a notice and cure period before the commencement of a private civil action,” and other provisions.
The Coalition of Franchisee Associations, representing more than 37,000 franchisees, supports the bill. The ADA is “an important civil rights measure that franchisees have long supported,” Chairman Keith Miller wrote to Poe last November. “Unfortunately, unscrupulous lawyers have taken advantage of this law by filing ‘drive-by’ lawsuits and forcing franchisees to settle ADA claims as a cheaper and less time-consuming alternative to advancing legal proceedings.”
The bill, however, has a 2 percent chance of becoming law, according to the website Govtrack, and “it will never get passed,” predicts Miller, the Fisher & Phillips attorney.
He, his colleague Scott Fanning and Crain shared practical advice for business owners: Hire an architect or consultant experienced in ADA to identify any violations at your property. Use contractors who are familiar with ADA requirements. Recognize that not all Title III claims are architectural or structural; some are service-based and require employee training.
“A lot of the fixes can be really simple if done before a complaint is filed, such as lower a grab bar in the bathroom,” says Fanning of Fisher & Phillips. “Fix the easy stuff, so anyone can use your services.”
For Rowland at the Bulldog, though, and other owners who feel run over, those tips may sound quaint. Long before she was a target of Hansmeier, Rowland says, she had received a checklist from her insurance agent.
“I had already gone through our whole restaurant and knew we were compliant,” she declares, but Hansmeier “ended up suing us, and it was a big pain in the butt. What do you do? You’re just at the mercy of someone who wants to sue you for no reason.”
And the cause of disability rights? Left in the dust. “He wasn’t fighting for justice,” she says. “He just tried to get the money.”
Beth Ewen is editor-in-chief of Franchise Times, and writes the Continental Franchise Review® column in each issue. Send interesting legal and public policy cases to firstname.lastname@example.org.