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ADA Litigation: Improving access or just making money?

The Americans with Disabilities Act (ADA) is an important tool in the ongoing battle to ensure that disabled citizens have equal access to jobs and opportunities in our country.

When former President George H.W. Bush signed this historic piece of legislation into law, he invoked the Declaration of Independence, saying the legislation would bring “us closer to that day when no Americans will ever again be deprived of their basic guarantees of life, liberty, and the pursuit of happiness.” He also spoke directly to property owners and small businesses, ensuring that the new law would not “lead endlessly to litigation.”

Not in his worst nightmares did Bush envision a day when unscrupulous attorneys would use and abuse this well-meaning law to enrich themselves at the expense of businesses. Yet, that is the disturbing trend we are seeing as filings of ADA lawsuits have exploded all over the country—with hot spots in California, Florida, New York, New Jersey, and now, Louisiana. The latest local example was highlighted in a recent report from the Baton Rouge Advocate: “LAFAYETTE– A wheelchair user filed three federal lawsuits Monday against separate businesses and property owners in Lafayette, including one suit against the owners of the Acadiana Mall and two big retail stores there, claiming the properties are not handicapped-accessible and do not follow guidelines set out in the Americans with Disabilities Act. “Wayne Gilmore, who in court papers lists only St. John the Baptist Parish as his home, also has filed 11 ADA claims against property owners and businesses in Louisiana’s federal Eastern District, which includes New Orleans. Of the 11 lawsuits Gilmore has filed since 2003 in the Eastern District, 10 have been settled for undisclosed amounts of money, court records show. “And in Mississippi, Gilmore has filed seven suits that make the same claims as those in Louisiana. Six of the seven in Mississippi have been settled. In those cases too, settlement amounts were not listed.”

So let’s recap—this serial filer of ADA litigation has brought 19 suits thus far, all of which are nearly identical, and most have been settled for undisclosed amounts of money. No word on whether the small businesses and property owners targeted in these drive-by lawsuits were actually notified or given the opportunity to address any accessibility concerns prior to the lawsuits being filed.

This is a common frustration among those who are targeted by ADA litigation: the first time they hear about an issue of access is when a lawsuit is filed. Why not give defendants notice and an opportunity to address the issue? Obviously, most business owners are interested in making their businesses accessible to all of their customers.

Perhaps that’s where the lawyers come in? According to the Advocate report, Mr. Gilmore is represented in his most recent lawsuits by attorneys from the small Miami-based firm Ku & Mussman, which specializes in ADA litigation. As one journalist put it: this trio of Florida lawyers is almost single-handedly “driving an upsurge” in the number of disabled access lawsuits in hotspots around the county. And unfortunately, there are many other firms just like them.

There’s something fundamentally wrong about that. The goal of the Americans with Disabilities Act is to improve access for the disabled, not to increase profits for a small group of greedy trial lawyers and raise prices on goods and services for the rest of us.

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