NEW ORLEANS – The number of lawsuits against businesses allegedly in violation of the Americans with Disabilities Act (ADA) has grown over the past few years in the New Orleans area.
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 mainly led by New Orleans area attorney Andrew Bizer of the Bizer Law Firm.
Title III of the ADA provides for public accommodation for the disabled in 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.
Whitaker said Bizer specializes in ADA compliance lawsuits and that his cases generally follow the same pattern.
"These complaints are like cookie-cutters," Whitaker said. "They are all the same. The only thing that really changes is the name of the plaintiff."
In 2012 Bizer brought 33 ADA lawsuits in the U.S. District Court for the Eastern District of Louisiana.
“There are a lot of fast food restaurants that are sued, retail outlets, banks, shopping malls and so forth," Whitaker said. "Some of them are sued more than once."
Those targeted by Bizer's clients include corporations such as McDonald’s, Burger King and Wendy's as well as several smaller locally owned businesses. Included in that list are two cases in 2012 against Kazi Foods of Louisiana, Inc., a company that owns area Kentucky Fried Chicken franchises.
"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.
On Nov. 15 alone Bizer filed five cases on behalf of Melva Mayes.
Since he began to bring ADA cases in 2009 Bizer has brought eight suits on behalf of Hayes, 11 on behalf of Thad Tatum, eight on behalf of Tasha Herbert, seven on behalf of Jesse Bascle and four on behalf of Myshettia Reid in addition to a handful of cases representing others.
Whitaker said Bizer's use of the ADA mimics that of attorneys in other parts of the country and that he anticipates other attorneys will follow Bizer's lead.
"It is something that, as far as his strategy, is imported from elsewhere so to speak and 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 (ADA) cases going at any one time."
For defendants in ADA suits Whitaker said it is not worth the cause to take the case to court.
"The driver on this thing is really all about the attorney’s fees," Whitaker said. "If the plaintiff gets a judgment he automatically receives his fees. If he doesn’t and the business owner or business operator is successful they don’t get their attorney’s fees. So it is a tilted playing field if you will."
With little incentive to fight ADA cases or enact expensive changes requested of them many businesses choose to settle the cases.
“I think sometimes businesses feel like ‘let’s just pay the tribute’ rather than facing the uncertainty,” Whitaker said.
In his defense, Bizer said that the ADA can only be enforced through civil litigation.
"Congress drafted the ADA so that the only method for enforcement is through civil litigation," Bizer said.
"This type of enforcement via litigation puts the onus on the businesses to self-regulate, as opposed to spending tax dollars on compliance enforcement."
Bizer said that since the ADA was signed into law in 1990 that businesses have had over two decades to bring themselves into compliance, but many still have not.
"The owners of those facilities have all made their own individual cost/benefit analysis," Bizer said. "They have decided it wasn't within their best interest to spend a few thousand dollars on compliance.
"They would rather discriminate against the disabled and risk getting sued."
Whitaker said he believes if the plaintiffs in the cases were truly interested in ADA compliance they might at least have a conversation with the business owner first.
"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," he said.
Because the improvements requested in the cases are often in the hundreds of thousands of dollars defendants often have no other choice than to settle rather than go to trial.
"The name of the game is 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," Whitaker said. "You don’t have to have much of an imagination to put two and two together on that."
Bizer said viewpoints such as those held by Whitaker are inherently wrong.
"I find it extremely cynical when businesses and their lawyers attack the disabled and their attorneys after they get sued," Bizer said. "There is literally no other way to enforce this important Civil Rights legislation."