Washington, D.C.—The National Federation of Independent Business' Legal Foundation filed an amicus brief urging the 9th Circuit Court of Appeals to protect small businesses from "drive-by" Americans with Disabilities Act suits.
These suits are filed by serial claimants and their attorneys who abuse the ADA by initiating expensive lawsuits that can kill a small business, but rarely result in improving public access for the disabled.
These suits, when filed without notice to the defendants, have been termed "drive-by" suits because neither the claimants nor their counsel made any attempt to share their concerns with the defendants before filing a lawsuit. Several courts have stated that these cases appear to have been filed largely to recover attorney's fees, and not with the intention to create access for the disabled. In fact, it is common for these plaintiffs to file several suits at one time claiming that numerous businesses discriminated against them on a single day.
Jarek Molski, the plaintiff in the case at hand, Molski v. Mandarin Touch Restaurant, is a prime example of a well-established, serial abuser of the Americans with Disabilities Act. Molski has filed over 400 ADA lawsuits, creating a solid pattern of abusive litigation. His past actions show that he has no interest in having small businesses improve public accommodations. In fact, in past cases Molski has actually ordered defendants not to repair or modify allegedly inaccessible facilities by sending a letter that threatens additional legal action against the business if the evidence (i.e., the facility) is changed or altered.
In the case before the court, Molski's target was a restaurant 116 miles away from his home in Woodland Hills, Calif. Like all his other complaints, Molski alleged that he visited the restaurant once, found the restroom too narrow, and injured his hand in the exterior restroom door. Molski did not visit the restaurant at any time between the first incident and the filing of his complaint a year later. The defendant, Mandarin Touch Restaurant, challenged Molski's standing to bring suit.
"Abusive Title III ADA litigation is a continuing threat to independent businesses," said Karen Harned, executive director of NFIB's legal foundation. "Most defendants choose to settle these claims rather than face a possible negative verdict. This is understandable from the individual businesses' perspective. However, by settling, serial plaintiffs are empowered to continue victimizing small businesses. The more cases on record denying standing to ADA litigants, the better chance independent businesses have of shutting down these lawsuits, which do little to improve public access."
The district court evaluated Molski's standing using four factors devised by the 9th Circuit especially for ADA plaintiffs: 1) the proximity of the public accommodation to the plaintiff's residence; 2) plaintiff's past patronage of defendant's business; 3) plaintiff's intent to return; and 4) plaintiff's frequency of travel near the defendant's accommodation. The district court found that Molski failed to satisfy any of the above factors, and therefore lacked standing to bring the claim against Mandarin Touch Restaurant. Molski appealed this decision.
"Courts should not allow plaintiffs to get away with this kind of ADA abuse. The district court properly found that Molski should not be permitted to bring this claim against Mandarin Touch Restaurant. The 9th Circuit now has a perfect opportunity to affirm this decision and make it crystal clear to future claimants, and their lawyers, that 'drive-by' ADA claims will no longer be tolerated."
