ADA lawsuit critic describes some cases in New Orleans as 'drive-by litigation'

Kyle Barnett Sep. 10, 2012, 2:00am

David Whitaker

NEW ORLEANS – A slew of Americans with Disabilities Act lawsuits filed in the U.S. District Court for the Eastern District of Louisiana in the past year have one local defense attorney questioning the motives of the attorneys who file them.

The Americans with Disabilities (ADA) was passed in 1990 to make public accommodations more accessible for the disabled.

David Whitaker, partner at New Orleans-based defense firm Kean Miller, said the recent up-tick in the number of lawsuits under the ADA has been disturbing.

"There are 30-something suits and they are all brought on behalf of this cadre of four or five plaintiffs who filed suits over and over in kind of a pattern," Whitaker said. "It is something new. Not to say there haven't been any of these suits before. But, certainly not as we're aware of being this pattern or developing pattern of lawsuits that is systematic of what we have seen in other jurisdictions."

Title III of the ADA provides for public accommodation for commercial facilities. All buildings built after 1990 are required to include architectural designs that provide for easy access for the disabled. In addition, the bill applied standards to historic properties that must provide access to "the maximum extent feasible."

Under the Act, those who experience inaccessibility in public accommodations can file civil lawsuits to have them corrected.

"What makes it especially important for (New Orleans) businesses to be mindful of is that we are sitting with a lot of old architecture, a lot of old structures," Whitaker said.

"You shouldn't have an issue if you are building new construction, assuming you have competent personnel helping you out on the project. So it is these places of business that have been around where the buildings are older and so forth. We have a lot of those here. We don't even have level sidewalks in this city."

The properties that were built before the Act was passed are the ones that are being targeted by litigation, he said.

And, the lawsuits generally follow the same pattern, according to Whitaker.

"These complaints are like cookie-cutters. They are all the same," he said. "The only thing that really changes is the name of the plaintiff and the allegations of supposed inability to access the public accommodation."

Whitaker calls the cases "literal drive-by litigation" because the majority of them begin with a complaint about the parking lot before examining every piece of the business's structural make-up that may be considered in violation of the ADA.

"It literally progresses to, OK, here's an issue with the parking lot–that's my hook. Ok what else can I do? Lack of a path of access from the parking lot to the storefront. Ok that's my next issue," Whitaker said.

"Then it leads them inside and you'll find out in almost every one of these cases it ends up in the bathroom. That's where the real issues and super expensive issues end up being. Remodeling these restrooms under ADA compliance is just outrageously expensive."

Whitaker said the lawsuits can end up demanding the businesses make hundreds of thousands of dollars in repairs, which he said lead the defendants in most cases to settle rather than pursue a court battle and be liable to make the changes that may put them out of business. The problem is when those cases are settled and the inaccessibility claims are not rectified the business is still open to future litigation over the same issues.

"A settlement with one claimant is not a settlement with the issues to the public as a whole," Whitaker said. "I have not seen this in the cases filed to date, but in theory the same lawyer representing a different plaintiff can come in with other issues, different demands or maybe even some of the same demands that weren't resolved in terms of changes if you will. So now I want these made. It really is the kind of litigation that could lend itself to one might say abuse or manipulation."

Whitaker said the intent of the lawsuits is obvious to him.

"You'd think someone who was interested in gaining access would perhaps at least consider making some type of request of the business owner or the property owner before rushing into court and filing a lawsuit, but that is not what is going on here and the driver for it in my opinion is attorney's fees," Whitaker said.

"The name of the game is to go in and rattle this up and settle for the fees and the lawyer and the client are going to be sharing these attorney's fees and that is the driver and profit mode. You don't have to have much of an imagination to put two and two together on that."

ADA lawsuits are not a new occurrence. Other parts of the country have experienced them for a number of years. The website has numerous examples of what it claims is ADA lawsuit abuse.

The site claims that more than 14,000 claims have been made in California in the past few years alone. In addition to California, Florida and New York have also experienced a large number of ADA lawsuits.

In those states Whitaker said ADA lawsuits have become a real problem for the business community.

"Literally it's a sort of drive-by litigation by attorneys who are putting people out of business right and left," Whitaker said.

Whitaker said he believes the success of ADA lawsuits in other states is behind their recent appearance in Louisiana and that he hopes they will not flourish as they have elsewhere.

"I wouldn't be at all surprised to see others–after all it is a copycat profession," Whitaker said. "Hopefully we won't end up like New York where we have these attorneys with 200 and 300 cases going at any one time."

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