Attorneys for Serial ADA Litigants Can Get Minimal Fee Awards
The Americans with Disabilities Act (ADA) was enacted in 1990 to prevent discrimination against people with physical or mental impairments. As summarized by the Department of Justice, the law “provides a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” It seeks to give them a chance to achieve the same rights, opportunities, and quality of life as those without disabilities.
Under the ADA, many institutions and services including, commercial facilities, must be accessible. If they are not, under federal law injunctions and attorney’s fees, but not monetary damages, may be awarded. Although plaintiffs cannot get monetary damages, the availability of attorney’s fees has sadly prompted what one law journal author called a “wave of get-money quick lawsuits brought by a small number of professional, serial plaintiffs.”
This reprehensible behavior would not be possible but for the attorneys who represent the disabled plaintiffs. But now, an appellate court has limited the fees that attorneys can receive for representing “serial filers” who repeatedly ask for compensation for the harm they allegedly suffer. Here, the plaintiff Shayler, represented by the Hollywood law firm of Hakimi & Shahriari, sued a dry cleaner who was located on Pacific Coast Highway in Hermosa Beach.
In Shayler v 1310 PCH, LLC, in an opinion written by Justice Milan D. Smith Jr., a three-judge panel of the Ninth Circuit Court of Appeals upheld a ruling by Presiding District Judge George H. Wu of the Central District of California. On October 24, the panel affirmed the District Court’s order that permitted a “reduced amount of attorney’s fees and costs” after it had granted summary judgment in favor of Shayler, whom they called a “serial ADA litigant.”
Shayler had asked for an attorney’s fee of $300 per hour, based on the average billing of the four attorneys who worked on the case, and $10,000 in costs. Using a “65% downward multiplier,” the District Court reduced the award to $9,871 (($7,896 in fees) because of the “routine nature of the work” and “the lack of meaningful opposition by the defendants.”
Justice Smith wrote that the District Court did not abuse its discretion when it found the attorney's fee request to be unreasonable. The court had provided a clear and concise explanation of the decision that permitted significantly reduced damages for the “repetitive and high-frequency litigation.” The appellate court agreed that junior associates or paralegals could have done the pre-trial work and that much of the work was “superfluous” because hours were billed after the defendant had already admitted fault.
Justice Smith’s opinion begins with a quote from a University of Florida law journal article by Phoebe Joseph. She writes, “The ADA satisfied the need for meaningful legislation for the protection of individuals with disabilities; however, one of the unforeseen consequences of this statute was the widespread abuse taking form due to the actions of serial ADA plaintiffs.”
Smith went on to quote a District Judge who described the procedure like this: “The scheme is simple: an unscrupulous law firm sends a disabled individual to as many businesses as possible, in order to have him aggressively seek out any and all violations of the ADA. Then, rather than simply informing a business of the violations, and attempting to remedy the matter through conciliation and voluntary compliance, a lawsuit is filed . . . .Faced with the specter of costly litigation and a potentially fatal
judgment against them, most businesses quickly settle the matter.”
In an effort to protect its disabled, Smith writes that California “(made) matters worse” when it passed the Unruh Civil Rights Act and the California Disabled Persons Act, which created “private rights of action under state law.” California tried to limit abusive lawsuits, but plaintiffs’ attorneys learned to file their complaints in federal court under the ADA, claiming they had “supplemental jurisdiction” over California claims. The result has been a 17% increase in civil claims in recent years.
It is simple to file a claim. Attorneys just need to complete a boilerplate form that has prompted what Joseph called “cookie cutter lawsuits” with very similar complaints. These simple procedures have created a new “cottage industry” for lawyers.
Shayler’s lawsuit used both ADA and the Unruh Act to request injunctive relief and attorneys’ fees from a property owned by defendant. After eight months, Shayler asked for summary judgment. PCH said it would not oppose the motion, but Shayler filed a reply anyway. The court granted summary judgment but declined most damages.
Smith’s opinion explained that the Ninth Circuit’s standard of review was based on what would be considered “reasonable attorneys’ fees” and that the District Court had a “great deal of discretion” in its determination of reasonableness. When Shayler disputed the District Court’s lack of explanation for using a blended billing rate and a 65% downward multiplier, he wrote that he was “not required to write “the equivalent of a law review article” justifying the fee determination. All that was required was a “concise and clear explanation,” which the District Court provided. He dismissed all of Shayler’s inappropriate citations that compared fees in this case to those awarded by other courts.
He concludes, “This was a simple, relatively uncontested case.” There was no abuse of discretion and the ”serial filing attorneys” for “serial filing plaintiffs” might have to look elsewhere than to disabled individuals for their fees in the future.
