The Riverside District Attorney’s Office has taken a momentous step in curbing abusive ADA litigation.  On April 24, 2019, The DA’s office  filed a lawsuit against Craig Gerald Cote, 67, of Huntington Beach, Babak Hashemi, 40, Joseph Richard Manning, 50, Michael John Manning, 43, and James Rutherford, 66. All of the forgoing but Rutherford are attorneys.  Rutherford is a Plaintiff often represented by the Mannings and Cote in Americans with Disabilities Act (ADA) lawsuits.  The lawsuit is not a criminal lawsuit.  Rather, it is a civil lawsuit with causes of action for violations of the California’s Unfair Business Competition law, Business & Professions Code sec. 17200.

Whenever challenged regarding their tactics, ADA plaintiff attorneys typically claim that they are merely enforcing the law, and that the businesses which they are suing are violating the ADA and related state laws.  This case is no different. All defendants in the DA’s case are represented by attorney David Darnell, who made statements to that effect in defense of his clients.  However, as discussed extensively in previous posts in this blog, these lawsuits abuse the ADA for the following reasons (among others):

• The lawsuits exploit a loophole in the law.  The lawsuits exploit the most ambiguous and subjective parts of the law to make claims against businesses who are mostly exempt from ADA construction requirements.  Under the ADA, businesses pre-dating the law are merely encouraged to do things that are “readily achievable . . . without much difficulty or expense.” Congressional discussions shows that legislators did not intend such businesses to be subject to litigation.  However, the law has been perverted to such a degree that these mostly-exempt businesses are the primary targets of lawsuits, and for the most unlikely access barriers.  The lawsuits become costly inquiries into defendants’ cost-pain threshold for construction modifications.
• ADA attorneys design the lawsuits to ‘fly below the radar.’  The plaintiffs and their attorneys demand money in amounts less than it would cost the business to litigate the merits of the lawsuit.  The plaintiffs and their attorneys profit by filing a high volume of cases.  Most lawsuit defendants are small businesses who simply cannot afford to litigate a case on principle, and thus agree to pay the plaintiffs.
• ADA attorneys and their plaintiffs rarely ask the business to make changes before filing a lawsuit.  This fact is evidence they are more interested in profit than accessibility.
• Plaintiffs tend to be “high-frequency litigants” for whom the lawsuits are a major source of revenue.  They are sometimes referred to as “professional plaintiffs” because they look for vulnerable businesses to sue rather than suing business where they have actually suffered some type of barrier or discrimination.  The businesses typically have never received complaints from disabled persons.  Thus, the allegations in the lawsuits tend to be about theoretical barriers rather than something that actually interfered with anyone’s access.  For example, faded parking space lines; mirrors, coat hooks, toilette paper dispensers, and grab bars that vary a fraction of an inch or two from ADA standards; slopes that vary a fraction of a degree (most typically from subsidence or minor asphalt undulations), and so on.  In addition to the monetary pay-outs to the plaintiffs, businesses are forced into making meaningless modifications, in terms of practical accessibility, often costing tens of thousands of dollars in an exercise that is relevant only to litigation risk management.

Interestingly, the above referenced factors are not the illegal part that Riverside DA is targeting.  Despite the low entry and unfair nature of these lawsuits, there has been a record of attorneys who overstep the boundaries of the law in pursuing this type of litigation.  Thus, several attorneys have either been subjected to disciplinary action or Court fines for things such as forging signatures, making misrepresentations to the Court, and essentially faking the lawsuits.

More law enforcement investigations are needed because abusive, improper, or even illegal conduct in these cases is almost impossible to prove in any single case, but when the cases are aggregated, abuse may be proven in patterns of conduct that establish illegal activity.  Law enforcement investigators will likely be able to get information or admissions from some of the plaintiffs that private attorneys in an individual lawsuit are not able to obtain.

In a traditional and legitimate lawsuit, an individual seeks out an attorney after suffering some sort of injury as a result of wrongful conduct by a person or entity.  Generally, it is illegal for an attorney to generate lawsuits by hiring or engaging persons to seek out potential lawsuits.  In between these two arrangements, is a concept known as  “tester” or “private attorney general” lawsuits in which, under certain laws, individuals may bring lawsuits after testing a business’s compliance with civil rights laws.  Historically, these lawsuits have been brought by non-profit public interest entities and involve overt and intentional acts of discrimination, e.g., refusing to rent to racial minorities.  Many of the high-volume ADA plaintiffs and attorneys argue that they may bring these lawsuits as testers.  As a result, the mere fact that the plaintiffs file a high volume of cases for minor and theoretical issues against businesses for which they had no intent of patronizing as a customer, is probably not in of itself to prove improper or illegal conduct.  Rather, an investigation will need to scrutinize the representations made by the plaintiffs and their counsel, their financial arrangements, the involvement of the attorneys in selecting defendants and planning the lawsuits, and other factors.  They will need to scrutinize the communications and relationship between plaintiffs and their attorneys, and their methodology in selecting defendants against whom to file lawsuits.  While normally such communications are confidential and privileged against discovery, an exception arises when the communications are in furtherance of criminal conduct.