Sunday, September 30, 2012

Professional ADA Disability Troll Scott Johnson Forces Ford's Real Hamburgers In Sacramento Out Of Business

A professional troll who deliberately targets small businesses to "find" violations of the Americans With Disabilities Act (ADA) has struck again and has forced a Sacramento restaurant owner to close. Ford’s Real Hamburgers, which has been slinging burgers, fries and shakes for decades in the Sacramento area, is shutting its doors for being out of compliance with the Americans with Disabilities Act because the owner says he can’t afford to bring it up to code. And it was the professional troll who deliberately targeted Ford's with an ADA suit. Update October 1st: News10 reports that California Governor Jerry Brown just signed a bill a few weeks ago co-authored by Senate President pro Tempore Darrell Steinberg, D-Sacramento, that would prevent frivolous lawsuits. It would ban demand letters. It gives the defendant time to fix the ADA violations. It'll also prevent lawyers from stacking multiple claims to increase pay-outs. But the remedy was instituted too late to prevent the closure of Ford's Real Hamburgers, and it would not stop federal lawsuits.

Placing Ford’s out of compliance with the ADA is the fact that there isn’t enough room to roll into the bathroom in a wheelchair. But owner Hank Vereschzagin said he just doesn’t have the money to fix the more than 60-year-old building. Placing the bathroom off limits to the public isn't an option since Ford's has seats in its restaurants, according to a comment posted to The Blaze story.

The professional troll is identified as Scott Johnson, an attorney who's a quadriplegic himself. Johnson would not comment extensively on this story, but in a similar suit against another business earlier in 2012, said “Being a quadriplegic, there’s nothing I can do about that. But these businesses that have structural barriers to access, that’s frustrating.”

However, another comment to The Blaze links to a February 2010 News10 story disclosing much more about Scott Johnson. Johnson, who is now 49, was disabled by a hit and run drunk driver in 1981. In 2003, Johnson decided to launch an ADA enforcement crusade that has potentially earned him millions of dollars. He operates out of his home in Carmichael with a team of legal assistants. A News10 analysis of federal court records in the Eastern District of California indicated Johnson has been the plaintiff in at least 1,079 ADA lawsuits since 2003. While Johnson said he hadn't kept count, he did not dispute the number, explaining that his average settlement with business owners has been between $4,000 and $6,000. Johnson's verified business address:

Disabled Access Prevents Injury, Inc
5150 Fair Oaks Blvd
Ste 101 PMB 253
Carmichael, CA 95608
Office: 916-485-3516

Efforts to get Scott Johnson declared a vexatious litigant, in which he would have to receive prior court approval before filing any new claims, have failed so far. Johnson said he's already been told by a federal judge that he doesn't meet the criteria because although he's filed numerous suits, they've all been deemed "with merit".



Nevertheless, Johnson's approach is remarkably similar to the business model employed by the infamous copyright troll Righthaven as well as the Recording Industry Association of America (RIAA). Both Righthaven and RIAA would "discover" copyright violations, but instead of sending notices asking for removal of the infringing material, would send demands for payment in lieu of more expensive lawsuits. Righthaven's demands for payment also averaged $3,000 to $5,000. Eventually, popular outrage caused RIAA to severely ratchet back its copyright trolling, while Righthaven made the mistake of trolling a couple of cash-flush targets who could and did fight back; as a result, Righthaven is currently in tatters.

Wikipedia provides more information on the role of "professional plaintiffs" in the ADA. The ADA allows private plaintiffs to receive only injunctive relief (a court order requiring the public accommodation to remedy violations of the accessibility regulations) and attorneys' fees, and does not provide monetary rewards to private plaintiffs who sue non-compliant businesses. Thus federal law alone does not allow persons with disabilities to obtain direct financial benefits from suing businesses that violate the ADA.

However, in the Ford's case, a state law, the California Unruh Civil Rights Act, allows private plaintiffs to seek monetary damages. Thus, "professional plaintiffs" are typically found in states like California that have enacted state laws allowing private individuals to win monetary awards from non-compliant businesses. The attorneys' fees provision of Title III does provide incentive for lawyers to specialize and engage in serial ADA litigation, but a disabled plaintiff does not obtain financial reward from attorneys' fees unless they act as their own attorney, or as mentioned above, a disabled plaintiff resides in a state that provides for minimum compensation and court fees in lawsuits.

Why is this tolerated? Proponents claim there may be a benefit to these "private attorneys general" who identify and compel the correction of illegal conditions: they may increase the number of public accommodations accessible to persons with disabilities. Proponents of private serial litigation believe that for the ADA to yield its promise of equal access for the disabled, it may indeed be necessary and desirable for committed individuals to bring serial litigation advancing the time when public accommodations will be compliant with the ADA.

Of course, it can have the opposite effect. It can reduce the number of private businesses in operation, thus reducing the number of employers -- and jobs.

2 comments:

  1. Any photos of this litigant troll?

    ReplyDelete
  2. Looks like he's finally getting a little of his own medicine:
    http://www.bizjournals.com/sacramento/news/2012/10/03/ada-attorney-johnson-sued-sexual-harassm.html

    Some pictures of the parasite:
    http://www.nydailynews.com/news/national/disabled-atty-sued-sexual-harassment-article-1.1173531

    ReplyDelete