Jarek Molski, 38, is a bit of a legend in legal circles. Disabled in a 1985 motorcycle accident that left him a paraplegic, he has filed 400 lawsuits against businesses under the Americans with Disabilities Act (ADA), alleging access violations. He was dubbed a "hit-and-run plaintiff" in 2004 by a federal judge and barred from filing any more lawsuits. Molski, of course, appealed to the U.S. Supreme Court, which finally rejected his case on Nov. 17 without comment. Molski must now petition the Central District Court of California and all state courts first before filing any new lawsuits. (See the top 10 underreported stories of 2008.)
Molski may sound extreme, but he is far from the only plaintiff who has filed hundreds of lawsuits under the ADA in California. A significant number of people who sue under the ADA have legitimate grievances and appear to be motivated by a sincere desire for access rather than monetary gain. However, according to David Warren Peters, CEO and general counsel of Lawyers Against Lawsuit Abuse, a small group of opportunists and select law firms are responsible for a huge percentage of the lawsuits. "I've seen plaintiffs that make Jarek Molski look like a Cub Scout," says Peters, whose San Diego–based firm represents and consults businesses and individuals accused of ADA noncompliance across the state and country. One plaintiff, he says, has filed more than 1,000 ADA accessibility suits alone.
California, along with Hawaii, Illinois and Florida, is a particular hotbed for ADA lawsuits and the law firms that bring them to court. "California may be the worst in the country," says Peters, citing several factors for potential abuse, chief among them two California statutes that provide $1,000 or $4,000 in minimum damages, plus attorney fees, per each successful claimant. Many claimants multiply these damage amounts by the number of conditions they observe at a property. This frequently results in $50,000 or more in damage demands, says Peters. Some serial claimants will file for damages against dozens of businesses they say they have visited on the same day or for repeated visits to an establishment.
"Opportunists see this as a great way to make $12,000 a day or more just by eating out," says Peters. "Easy money with the help of the courts is bound to attract opportunists." Peters adds that a surprisingly large number of suits are filed by individuals with significant prior criminal history. "It's hard enough to get a job if you have a criminal record. It's probably harder if you have one and are in a wheelchair. These lawsuits offer an unbelievable amount of money."
Perhaps unsurprisingly, Molski's attorney, Thomas Frankovich, says his client and the dozen or so serial ADA plaintiffs his firm has represented are activists and crusaders. Frankovich dubbed Molski (who does not have a criminal record) "the sheriff" because "he started going into town to clean it up." Frankovich says he has filed 223 ADA lawsuits on behalf of Molski. (Molski used other attorneys to file his other suits.) Frankovich says Molski began suing only after his letters to offending businesses were ignored. (Molski was out of the country and couldn't be reached for comment.) Says Frankovich: "Letters don't work. Only the hammer of litigation gets them to do what they need."
But Frankovich himself is being charged by the state bar of California on three counts of misconduct, stemming from ADA lawsuits he filed on behalf of Molski. One count alleges that Frankovich's litigation strategy amounted to a "scheme to extort money from defendants." Says Frankovich of the charge: "It's an absolute fabrication based on absolutely no supportive facts. Using the fact that he filed 223 lawsuits as evidence of a scheme is absurd. His rights were violated in 223 cases where significant architectural barriers existed."
The flood of potentially frivolous lawsuits, many directed at small businesses of less than 1,000 square feet, can have a profound effect on the local economy. Fearing the costs of a lengthy legal battle, many small-business owners decide to settle with plaintiffs for thousands of dollars. Some can't absorb the losses and end up shuttering their businesses.
Part of the problem, Peters says, is that California has higher standards than the federal ADA mandates, leading some business owners to mistakenly believe they are in compliance when they are not. The federal standard requires businesses to do what is readily achievable — that which can be carried out without much difficulty or expense, determined by practicality and the financial resources of the individual business. In California the standard is any discrimination or distinction in the way a business provides goods or services to the able-bodied and disabled. "If you fully comply with the ADA — and only with the ADA — in California, you can still be sued," says Peters. "Only 2% of buildings are compliant in California since the ADA guidelines went into effect."
In addition, inaccurate information about disabled access standards can leave even well-meaning business owners, who have had their premises inspected, vulnerable. Building inspectors and architects are sometimes misinformed about state compliance standards. In some cases, state and federal regulations are in direct conflict. For instance, California state regulations require a curb ramp to have a beveled lip, while federal regulations say the transition from ramps to walks, gutters or streets should be flush and free of abrupt changes. A new state law, S.B. 1608, approved by Governor Arnold Schwarzenegger and which goes into effect on Jan. 1, 2009, may only complicate the issue by creating a special class of "qualified defendants" (who have opted to be officially certified) who can avoid additional damages and legal expenses.
Andrew Imparato, president and CEO of the American Association of People with Disabilities, says his organization's biggest concern is that when the lawsuits are filed, a settlement may be reached, but the access issue is not addressed. "We'd like to see federal judges in a jurisdiction where lots of cases are being filed looking at the phenomenon and trying to work on a solution that results in improvements in accessibility," says Imparato, "and not lining the pockets of plaintiffs or boutique law firms that make a business out of it."
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