Can you get revenge for a fraudulent ADA lawsuit?

I often get the question: “Can I sue them back”?  People who are sued by ADA plaintiffs know  in their hearts that many, if not most, of the ADA lawsuits are essentially extortive, and did not involve a real disabled customer having difficulty with access.  They know they are being sued by a “professional” or “serial” plaintiff (as many have called them) or “high-frequency litigant” as state law now officially deems plaintiffs with 10 or more lawsuits in a year.  Several ADA plaintiffs easily surpass that threshold with several dozen lawsuits per year, and hundreds over several years.

The majority of defendants believe they were in compliance with the ADA when they get sued.  They have disabled parking and disability amenities in their bathrooms.   Almost all have attempted to make their businesses as accessible and usable for disabled people as they can.  Typically, they are in buildings that predate the ADA, which are exempt from any strict compliance deadlines or clear directives.  In reality, they probably are in “compliance.”  The law’s provisions for lawsuits were intended for real disabled customers who encountered real discrimination and real barriers, not persons trolling for lawsuits based on theoretical and largely fictional “barriers.” These fictional “barriers” are typically comprised of some physical aspect of a building constructed before the enactment of the ADA that varies from the standards for new construction – often by an inch or degree.  The law doesn’t require strict compliance in such buildings, only “readily achievable” barrier removal – so the central issue in the lawsuit is whether updating to new construction standards was “readily achievable,” not about whether anyone actually suffered any kind of injury or access barrier.

Moreover, defendants may have read heard about the numerous instances of unethical conduct, disciplinary suspensions, and even disbarment of ADA plaintiffs’ attorneys.  Indeed, several of the most notorious ADA plaintiffs attorneys have been caught engaging in unethical conduct and disciplined.  Thus, defendants often believe  the lawsuits against them may be illegal at some level.

In California, the ability to “turn the tables” is complex, difficult, and always expensive.  First of all, California has what is known as an “Anti-SLAPP law.”  “SLAPP” stands for Strategic Lawsuit Against Public Participation.  Cal. Civ. Proc. Code § 425.16.  The California Anti-SLAPP law is intended to deter counter-lawsuits that are intended to censor, intimidate, and silence plaintiffs from the “right of petition.”  SLAPP motions can result in dismissal of counter-suits, and the awarding of attorney fees to the ADA Plaintiff who brings a SLAPP motion.

Also, proving a plaintiff or his attorney is engaging in improper conduct is very difficult in an individual lawsuit.  To the extent such improper conduct exists, it is more likely revealed as a pattern of conduct across multiple lawsuits.  There is at least one pending lawsuit against an ADA plaintiff attorney alleging Racketeer Influenced and Corrupt Organizations Act (RICO) violations.  That lawsuit survived a SLAPP motion.  It is brought by a business that has financial resources to pursue a costly litigation.

Unfortunately, the California State Bar has been very slow and lenient compared to other states.  For example, one plaintiff attorney was finally suspended for misconduct which was revealed to the State Bar at least five years prior but which they refused to investigate at that time.  It’s likely that hundreds of additional defendants were victimized by the same conduct in the interim.

I believe that businesses and property owner associations need to pressure state or municipal law enforcement agencies to conduct broad based investigations into whether plaintiff attorneys are playing an impermissible role in setting up these lawsuits.  I believe that then we would see real progress in stopping the abuse of a well-intended law.

About William Adams

Attorney at Norton, Moore, & Adams, LLP.
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