A trio of lawyers from Florida are driving an upsurge in the number of suits charging New Jersey property owners with violations of the Americans with Disabilities Act.
Suits claiming owners of shopping centers, restaurants and motels fail to comply with the act’s handicap accessibility provisions have been riding a two-year upswing in New Jersey, a Law Journal analysis has found.
In the first three weeks of August alone, 18 suits over disabled access were filed in New Jersey, far more than the typical filings of three or four such suits per month over the last four years.
In the first eight months of 2014, 49 ADA access suits were filed in New Jersey, about level with the 48 suits filed in the first eight months of 2013. Prior to that, however, there were only 19 ADA access suits filed during the first eight months of 2012 and seven suits filed in the first eight months of 2011.
For the entire year of 2013, 63 access suits were filed in New Jersey, compared to 36 in 2012 and 13 in 2011.
Most of the accessibility suits in New Jersey are filed by a handful of lawyers from the Miami area, either directly or through local counsel who sponsor admission pro hac vice of such lawyers.
According to court records, the three plaintiffs lawyers filing the majority of those suits are John Fuller of Fuller, Fuller & Associates in North Miami, Fla.; Brian Ku of Ku & Mussman in Miami; and Robert Mirel of Aventura, Fla.
Fuller has filed a total of 69 accessibility suits in New Jersey in 2013 and 2014. Ku has filed 15 suits and Mirel has filed 11 in New Jersey during that same period.
And the same plaintiffs’ names are seen over and over in those cases. Dennis Maurer is the plaintiff in 30 New Jersey disability access suits in 2013 and 2014, all of them filed by Fuller. John Nanni, a plaintiff who teams up with Ku, has been the plaintiff in 23 suits. Plaintiffs in the cases assert that they are disabled and that they visited the defendant’s premises—typically, only once—and encountered barriers to access.
Besides having many of the same plaintiffs and plaintiffs counsel, court documents show that the cases almost universally play out the same way, ending in a confidential settlement, usually six months or less after the suit is filed.
Filing ADA suits against property owners is like “stealing candy from a baby,” one plaintiffs lawyer who files those types of cases said, speaking on condition of anonymity.
“When we sue, they make the changes. There’s no sense litigating it—they’re going to lose,” the lawyer said.
Restaurants are a common target for the disabled-access suits filed in New Jersey, including some McDonald’s, Burger King and Wendy’s outlets and at least one Hooters. A few hotels and motels have also been sued, but the most frequent defendants in the ADA suits filed in the state have been shopping centers—from large ones to strip centers anchored by a pizza place and a dollar store. Common complaints in the suits are that handicapped parking spaces fail to provide enough room for a van with a wheelchair lift and that bathrooms fail to accommodate people in wheelchairs.
Defense lawyers who have handled these cases said the cases usually settle to avoid having to pay the plaintiff’s legal fees for a trial.
The defendants typically agree in the settlement to improve disabled access to their properties and to pay fees to the plaintiff lawyers under the ADA. Monetary damages aren’t available under the ADA but the suits often include a count for violation of the New Jersey Law Against Discrimination, and settlements sometimes provide some financial consideration to the plaintiff, according to lawyers who handle these cases.
Fuller’s high-volume litigation approach was criticized by the defense in one case, Maurer v. Siganos Realty. There, the strip mall owner said in his answer that “plaintiff’s complaint is part of a pattern of abusive litigation insofar as plaintiff and/or his counsel has filed approximately 50 similar complaints in this judicial district alone.” The answer also said that plaintiff Maurer “was not a bona fide patron of the property and, if he visited the property, he did so solely for the purpose of initiating this lawsuit.”
Nevertheless, Siganos Realty was dismissed as settled Aug. 21. Defense counsel in the case, Paoli, Pa.-based Garen Meguerian, would not discuss the case, saying the settlement is confidential.
The Siganos Realty suit, filed on March 11, concerned a strip mall in Northfield known as The Plaza. The suit claimed that the center did not provide access to the nearby public sidewalk or street, that disabled parking areas were too narrow, curb ramps had dangerously abrupt changes in slope and that restrooms in tenants’ businesses had inaccessible toilets and towel dispensers. In addition, two dining establishments at the center failed to provide accessible dining tables, the suit alleged.
The volume of disabled-access suits has been increasing in New Jersey and around the country, according to Adam Saravay, a partner at McCarter & English in Newark who handles such cases. He attributed the increase to the small group of lawyers who file multiple cases around the country.
“One of the common frustrations among clients and business owners is that the first time they hear about an issue of access is when a lawsuit is filed. In my experience, business owners are interested in making their businesses accessible to all of their customers,” Saravay said.
Saravay said the cases leave plenty of room for defense lawyers to mount a defense on issues such as standing of the plaintiff, but often, “as a practical matter, it’s less expensive to fix the problem.”
Two bills pending in Congress would revise the ADA with an eye toward reducing the impact of litigation on small business owners. Both bills, HR 777 and HR 994, seek to institute a notice provision before the aggrieved party could file suit. Under HR 777, the property owner would have 90 days to remedy the violation, subject to a single, 30-day extension. The other bill, HR 994, would give the property owner 60 days after receiving notice to provide the aggrieved party with a description of the planned improvements. The property owner would have another 120 days after that to perform the remediation work. Both bills are currently before the House Subcommittee on the Constitution and Civil Justice.
“Although there are times when litigation by harmed individuals is necessary, there [is] an increasing number of lawsuits brought under the ADA that are based upon a desire to achieve financial settlements rather than to achieve the appropriate modifications. These lawsuits place exorbitant legal fees on small businesses and often times they are unaware of the specific nature of the allegations brought against them,” Rep. Ken Calvert, R-Calif., who sponsored HR 994, said in a statement when the bill was introduced in March 2013.
Fuller, Mirel and Ku, the Florida lawyers, did not respond to requests for comment. One attorney who works as local counsel for Fuller, Robert Donaher of Walder Hayden in Roseland, N.J., declined to comment, as did a lawyer who works as Ku’s local counsel, Dumont, N.J.-based solo Elizabeth Tandy Foster. Another lawyer who regularly works with Fuller, Alan Ackerman of Parsippany, N.J., also did not return calls.
The plaintiffs lawyer who asked not to be identified, however, disputed the assertion that disabled-access suits place a burden on property owners. The cost of settling is “like chump change, and frankly, they really have to do it. The law is the law.”
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