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Protecting the Ethically Challenged
A rash of Americans with Disabilities Act (ADA) lawsuits here in sunny Key West reminded me of the catfish lawyer joke sent to me by my brother-in-law, the attorney.
Question: What’s the difference between an ADA lawyer and a catfish?
Answer: One is a scum sucking bottom feeder and the other is a fish.
The ADA is feeding a growing industry of unprincipled lawyers who shakedown thousands of American businesses every year. The 1990 law passed with the usual good intentions. It has since spawned a grotesque modern Hydra of unintended consequences.
The ADA lawsuit industry began in California which has lucrative damage payment rules. It soon spread to Florida, where lawyers troll in a fertile sea of restaurants, hotels and attractions for a bountiful catch of payoffs. The trend is spreading quickly to other states.
The ADA is a tort lawyer’s dream. If a defendant loses he pays the plaintiff’s legal fees. If a defendant wins he still pays his own costs. As soon as the suit is filed, the defendant is in the hole and can never break even. Worse yet, he doesn’t have to lose at trial to have to pay the plaintiff’s costs. Admitting the slightest violation in a settlement — a mirror too high, a missing grab bar, a toilet too low — makes the defendant liable for the plaintiff’s legal fees. A defendant’s only real choice is a relatively small payoff now or a larger one later.
Think full compliance will protect you? Think again. The law is stupefyingly complex. There are 95 different standards for bathrooms alone. A top executive with the American Association of People with Disabilities remarked, “I have not found anything that’s 100 percent compliant with the ADA.” In other words, the law is impossible to obey.
As a result nearly all ADA shakedowns are settled with a quick payoff. One of the industry founders, Jarek “The Sheriff” Molski of California, said he averaged $20,000 on each suit. He has filed over 400 of them. Do the math. Never mind, I will. That’s $8,000,000 in just two years of suing California businesses. Several that fought him went belly up, including a 40-year old drive-in restaurant and an Oriental eatery that had been in business for over 100 years.
In an extraordinarily rare move, a federal judge barred Molski from filing any more ADA suits, calling him a “vexatious litigant.” The judge said, "Molski's M.O. is clear: sue, settle and move on to the next suit," adding that it was “...a scheme of systematic extortion." While that much common sense from a judge is encouraging, it is also as rare as a Green at a gun show. Dozens of other lawsuit mills are milking the ADA cash cow as fast as she will produce.
The National Law Journal reports that in three years Miami attorney John Mallah sued more than 700 Florida tourist businesses on ADA complaints. He usually settles for $3,000 to $5,000 in legal fees and a promise to shape up. Mostly he sues on behalf of his elderly uncle, a man who must spend a lot of time on the road. Attorney Ted Omholt filed more than 500 lawsuits against Hawaiian businesses for his octogenarian mother-in-law. Attorney Robert Bogdan in Pompano Beach, Florida has filed numerous suits for his 12-year old disabled neighbor, who has suffered embarrassment and emotional distress in her visits to local pawnshops and liquor stores.
ADA lawsuits clearly have little to do with the law’s goal to end discrimination against the handicapped. At the same time they confirm Nobel laureate economist F.A. Hayek’s observation that legislative attempts to control social behavior always have unintended consequences — consequences generally at odds with the original goal of the law.
The ADA also demonstrates the Law of Subsidy, which says that whatever you subsidize you will get more of. The ADA subsidizes disability. No wonder all those handicapped parking spaces have filled up. Just about anything will qualify as a handicap if you look at it properly.
You can get a handicapped parking permit for being fat, bald, flat-footed, or cranky. My wife, certain I will qualify, is pestering me daily to apply for privileged parking. Under the ADA you can get a job as a lifeguard if you are deaf. You can bake bread in a commercial bakery in the nude. You can drive a UPS delivery truck if you only have one eye, even though other laws forbid it. Absurdity offers no refuge from the law.
The ADA forces us to do what we were inclined to do anyway, treat the less fortunate among us with fairness and compassion. But by making compassion mandatory we’ve turned the handicapped into a herd of cash cows for an ethically challenged legal profession to exploit.
A backlash against the disabled could easily follow. Where once someone in a wheelchair was a customer who needed a hand with the door, a business owner who has paid for an ADA shakedown might see a wheelchair as another lawsuit waiting to happen. “Use the grab bar, pal, it just cost me $10,000.”
Question: What’s the difference between a snake dead in the road and an ADA lawyer?
Answer: There are skid marks in front of the snake.
Congress could end the worst of the shakedowns with a simple notification provision, a provision that the trial lawyer lobby has defeated many times. Better still, but even less likely, if Congress catches the ADA basilisk in the headlights they should stay off the brakes.