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October 01, 2005

Suing for a living

Yesterday's LAT had an interesting feature describing the career of a serial plaintiff who made his living by suing small businesses for non-compliance with the Americans with Disabilities Act. Unfortunately for this unlucky plaintiff, his burgeoning business (the LAT estimates that he has made over three quarters of a million dollars over the last two years) has hit an unlikely speed bump in the form of Senior US District Court Judge Edward Rafeedie, who has ruled that Jarek Molski and his lawyers, the Frankovich Group, are "vexatious litigants" who henceforth will require a judge's approval to commence further lawsuits.

The ADA was designed to prevent individual lawsuits seeking money damages for alleged violations of the law. Instead, the act specified that individual actions to enforce the act were not entitled to damages, but the plaintiffs do receive reimbursement of their legal expenses if an injunction is obtained. However, in California, these suits can be combined with state actions under a local civil rights statute that can entitle the plaintiff to $4,000 a day in damages from the date of the alleged offense. This can add up to hundreds of thousands of dollars (since Molski would typically file his suit a year after visiting the establishment). Most businesses were willing to settle for $20,000 or $30,000 (often covered by their insurance since the incident resulted in an "injury" to Molski) to avoid the cost and uncertainty of going to trial. When you file 3 or more lawsuits a day, as Mr. Molski was want to do, it is easy to see how this can be a lucrative profession.

While it is easy to sympathize with handicapped people wanting equal access to public accomodation, most of the suits were brought against mom and pop restaurants for seemingly trivial violations like bathroom door requiring more than 5 pounds of pressure to open (resulting in numerous "injuries" to Mr. Molski, who reportedly has the upper body strength of a serious body builder) or sinks at the wrong height. In fact, disabled patrons of at least one restaurant sued by Molski were outraged by his allegations, since they had been patronizing that establishment for years and found the owners extremely helpful in assisting their disabled customers..

Equally worthy of sympathy, in my view, are the hardworking (often immigrant) small business owners who can ill-afford to be shaken down by shysters like Molski and Frankovich. If only there were more judges like Edward Rafeedie on the bench.

L.A. County prosecutor Patrick Frey (aka blogger and LA Times critic extraordinaire Patterico) has some insights about the lawyer hired by Molski and Frankovich to represent them in their appeal of the vexatious litigant designation: civil rights lawyer Stephen Yagman. According to Patterico, one of Yagman's favorite tactics is to personally insult the judge in the hopes of having him (or her) recuse themself from the case. Apparently, he's up to his old tricks; here's what Yagman said to a group of reporters about Judge Rafeedie after a hearing before him in February:

I would call the judge a Cro-Magnon, but that would be an insult to Cro-Magnons. Judge Rafeedie’s mean-spiritedness, his cruelty, and his contempt for civil rights make Hitler look like a humanitarian.

And people wonder why lawyers are so unpopular. . .

October 1, 2005 at 08:42 PM | Permalink

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