18 November 2008
by Martin H. Orlick
A “professional plaintiff” that has filed more than 400 nearly identical lawsuits against hotels, restaurants and other businesses in California may have to find a new line of work. The U.S. Supreme has let stand a prior ruling that this serial plaintiff, and his lawyer, cannot file ADA lawsuits without first obtaining the court’s permission.
On November 17, 2008, the United States Supreme Court let stand a key Ninth Circuit Court of Appeals ruling that a “serial plaintiff” and his attorney, who had filed more than 400 lawsuits against California businesses, could not file repeated Americans with Disabilities Act of 1990 (ADA) lawsuits against business owners without first obtaining court permission. In all but one of the 400 cases, the businesses settled out of court, avoiding substantial defense costs and time needed to fight the litigation.
A federal judge in Los Angeles called these litigation tactics “extortion” and based on trumped up claims of injury. The United States Supreme Court refused to grant a hearing to review the appellate court’s highly extraordinary ruling in the case, Molski v. Evergreen Dynasty Corp., 08-38, which found the plaintiff and his attorney to be “vexatious” for filing over 400 virtually identical ADA lawsuits in federal court.
The ruling is important because the lower courts found that the lawsuits were filed for improper purposes, even though barriers to accessibility existed at many of the businesses.
Background
The plaintiff alleged he visited as many as six businesses on any given day and encountered access barriers in each of the businesses which caused him the identical physical injuries, humiliation and emotional distress. The District Court granted Evergreen Dynasty Corp.’s motion for an order that the litigation was part of an implausible, cynical scheme to extort settlements from property and business owners.
The District Court found the plaintiff and his lawyer were vexatious litigants, imposed mandatory sanctions against both of them, and required the plaintiff and counsel to get the Presiding Judge’s permission to file new lawsuits. The trial court’s decision was affirmed on appeal. Then, by refusing to grant review, the Supreme Court let stand the lower court’s decision that frivolous ADA litigation and litigators will not be entertained in federal court. To insure that future cases filed by the plaintiff are meritorious, the Presiding Judge must weigh in on the merits and approve the lawsuit before it can be filed.
ADA cases must be brought for a proper purpose
By declining to review the case, the Supreme Court seems to be sending the message that ADA cases, like other civil rights litigation, must be brought for a proper purpose to redress actual discrimination.
It is this author’s view that the Molski decision is important to business owners as it prevents vexatious litigation, and important to the disabled community as it protects against a backlash attributable to serial litigation, which at least one Judge characterized as a cynical money making scheme.
Other articles on ADA
If you found this article of interest, you may want to check out some of the other articles on this topic on www.HotelLawBlog.com which can all be found under the “HOTEL LAW TOPIC” of “ADA” at the top of the home page (or by clicking here). The following are titles and links to some of those articles:
A blast against frivolous, serial ADA lawsuits in striking the right balance
Hospitality Lawyer with urgent ADA warning: You won’t believe what they want to do with ADA now
Hotel Lawyer: How hotel swimming pools may spawn ADA lawsuits and what to do about it.
Hospitality Lawyer — Landmark ADA case could provide relief for California hotels.
Hospitality Lawyer: ADA Update — Federal Courts Denying Plaintiffs’ Attorneys’ FeesHospitality Lawyer: Big ADA Changes Coming to Hotels
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Martin H. Orlick is a senior member of the law firm’s Global Hospitality Group® and a partner in the Firm’s Real Estate Department. He has helped clients with more than 300 ADA cases for hotels and other businesses. He is also a member of the American College of Real Estate Lawyers (ACREL). For more information about ADA compliance and defense, contact Martin H. Orlick at 415.984.9667 or morlick@jmbm.com.
This is Jim Butler, author of www.HotelLawBlog.com and hotel lawyer, signing off. We’ve done more than $87 billion of hotel transactions and more than 100 hotel mixed-used deals in the last 5 years alone. Who’s your hotel lawyer?
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Our Perspective. We represent developers, owners and lenders. We have helped our clients as business and legal advisors on more than $125 billion of hotel transactions, involving more than 4,700 properties all over the world. For more information, please contact Jim Butler at jbutler@jmbm.com or 310.201.3526.Jim Butler is one of the top hospitality attorneys in the world. GOOGLE “hotel lawyer” or “hotel mixed-use” or “condo hotel lawyer” and you will see why.
Jim devotes 100% of his practice to hospitality, representing hotel owners, developers and lenders. Jim leads JMBM’s Global Hospitality Group® — a team of 50 seasoned professionals with more than $87 billion of hotel transactional experience, involving more than 3,900 properties located around the globe. In the last 5 years alone, Jim and his team have assisted clients with more than 100 hotel mixed-use projects — frequently integrated with energizing lifestyle elements.
Jim and his team are more than “just” great hotel lawyers. They are also hospitality consultants and business advisors. They are deal makers. They can help find the right operator or capital provider. They know who to call and how to reach them.
Contact him at jbutler@jmbm.com or 310.201.3526. For his views on current industry issues, visit www.HotelLawBlog.com.
