ADA serial filers and their lawyers are not popular with the businesses they target, as illustrated very clearly by the recently filed Baek Family Partnership, LLC et al v. Wampler, Carroll, Wilson & Sanderson PLLC et al, Case No. 3:25-cv-00584 (D. Or.). But before discussing that case, I’d like to look at past attempts to use litigation against ADA serial filers and their lawyers.
The earliest such lawsuit, Saniefar v. Moore et al, Case No. 1:17-cv-00823 (E.D. Cal.), settled in 2020 after the plaintiff won some preliminary discovery battles. The defendant serial filer, Ronald Moore, seems to have cut back on his filings in California after the settlement, but it seems he has continued to file lawsuits in other states, with at least 50 or 60 filings in Florida and New Jersey. This illustrates a basic point about serial ADA litigation – it is really just one kind of industrial litigation based on a high volume of lawsuits filed with the intent to get an early settlement. I have always believed that ADA serial litigation developed after tort reform legislation and restrictions on class actions made other forms of industrial litigation harder to pursue. If the serial filers can’t pursue ADA claims they will turn elsewhere because there are plenty of laws amenable to this kind of litigation.³
In Neal v. Second Sole of Youngstown, Inc., 2018 WL 340142 (N.D. Ohio Jan. 9, 2018) a racketeering counterclaim against a serial filer was dismissed for failing to state a claim.¹ There may be lessons here for the latest plaintiffs using the RICO statute as a weapon against serial filers.
The same is true of Johnson v. Ocaris Management Group, Inc., Case No. 1:18-cv-24586 (S.D. Fla. August 23, 2019), The ADA serial plaintiff and his lawyers were sanctioned for filing a frivolous claim. This seems to have slowed them down, for the attorney, Scott Dinin, was suspended from practice for 18 months and then notified the Florida Supreme Court he was no longer practicing law. He doesn’t seem to have filed any ADA cases after 2019 although his bar profile shows he is now in good standing. In any event, Mr. Dinin’s problems did not slow the rate of ADA filings in Florida, with other lawyers and plaintiffs continuing to file industrial scale ADA litigation.
Ghandi et al v. Ehrlich et al, Case No. 1:19-cv-03511 (N.D. Georgia) was filed in 2019 against a serial filer and his attorneys. The case was dismissed and the plaintiffs were sanctioned when they failed to come up with any evidence to support their claims. This is a perfect example of my belief that outrage is no substitute for a good defense.(4)
In 2022 local district attorneys tried another tack in the highly publicized The People v. Potter Handy LLP, Case No. A166490 (Cal. App.). This was an attempt to attack serial filing firm Potter Handy using California unfair business practices statutes. The effort failed when the case was dismissed based on the “litigation privilege.” This is a privilege that protects people who file lawsuits from responsive lawsuits that allege the underlying cases were false or misleading. Lying in a court filing might lead to sanctions by the court in which the suit is filed, but it won’t generally give rise to claims that can support a separate lawsuit.
Late last year, in Jimenez v. Senior Exch., Inc., No. 23-CV-323 (ALC) (JW), 2024 WL 1833808, at *8 (S.D.N.Y. Apr. 26, 2024) the plaintiff’s law firm was sanctioned a whopping $500, not for filing an improper claim, but for making a disingenuous excuse for dismissing the lawsuit to (apparently) avoid an unfavorable ruling on standing to sue. This has predictably had no effect on the firm’s continued ADA filings. It is rare for federal judges to impose a sanction that goes beyond the single incident before them. No matter what this judge might have thought about the plaintiff or his lawyers, the only real issue was a misleading court filing that didn’t really change the outcome.
This is not a comprehensive list, but in general efforts to sanction ADA serial plaintiffs and their attorneys have not been notably successful. That is why the number of ADA filings fluctuates over time, but within a pretty stable range of between five and ten thousand federal cases each year. Industrial litigation is profitable and sanctions like those in Jimenez are just a cost of doing business.
This brings us to Baek Family Partnership, LLC et al v. Wampler, Carroll, Wilson & Sanderson PLLC et al, Case No. 3:25-cv-00584 (D. Or.). The Complaint alleges a broad conspiracy to file meritless ADA claims including 4000 or more demand letters and lawsuits in more than 15 states. Whether the allegations are true will no doubt be determined in court, but the central claims are:
- The plaintiffs did not have standing to sue, and allegations supporting their standing to sue were knowing misrepresentations to the various courts and
- The plaintiffs filed fraudulent in forma pauperis claims to avoid paying filing fees and other court costs.
Because this and other misconduct involved allegedly illegal fraudulent conduct it added up to a violation of the RICO statute, which defines racketeering to include a conspiracy to violate various federal laws that make different kinds of fraud illegal.
The case is in what might best be called the “press release” phase; that is, the case has been filed and the plaintiffs have publicized it. The defendants have responded by claiming the lawsuit is frivolous and threatening to seek sanctions, but have not yet filed an answer of any kind. Where the case will go is anybody’s guess, but it does differ from the earlier efforts of this kind in the specificity of the allegations, for it names what it calls the “Fake Testers” and identifies specifically the allegedly fraudulent filings they and their attorneys made. Many earlier efforts of this kind relied on the argument that anyone who files a lot of ADA lawsuits must be lying about their motives, a presumption courts have not been willing to adopt. This filing seems far more specific.
Looking back at this and other cases I find it peculiar, in some respects, that none considera claim of barratry; that is, lawyers creating litigation rather than waiting for litigation to come to them. Barratry is an ancient offense, and what it means today depends on local criminal statutes, attorney ethics rules and in some cases statutes creating a civil penalty. Despite those variations, the general principle is the same; lawyers who accept lawsuits from individuals who already have a claim are doing nothing wrong, even if they advertise to find such individuals. Lawyers who instead pay individuals who have no claim to go out and find a claim are engaged in barratry. When a single law firm files dozens or hundreds of lawsuits on behalf of a client who cannot financially benefit from a victory in court there has to be some question about who is really in charge. The law firm will certainly benefit if the suit is won, but there is nothing in it for the plaintiff unless the case settles and some of the settlement money goes to the plaintiff.² If settlement money goes to the plaintiff, it is reasonable to ask why and, more important, who decides? Is it a case of the plaintiff hiring the lawyer, or the lawyer hiring the plaintiff? (5)
I found only one mention of barratry in an ADA case. In Assn. for Disabled Americans, Inc. v. Integra Resort Mgt., Inc., 385 F. Supp. 2d 1272 (M.D. Fla. 2005) a clearly disgusted federal judge strongly suggested that the plaintiff’s lawyers might be guilty of barratry and that despite a seeming victory they should get no fees. However, because the fees were stipulated by the defendants the judge was compelled to award them. That kind of stipulation is the foundation of serial ADA litigation. Plaintiffs, or their lawyers (you choose) file suit intending to settle for just a little less than it costs to mount a real defense. Thus, it never makes economic sense for the defendants to fight because they can escape the costs of litigation with a relatively small payment to the plaintiff’s attorneys. It remains to be seen whether Baek Family Partnership, LLC et al v. Wampler, Carroll, Wilson & Sanderson PLLC changes how industrial ADA litigation is conducted, but my guess is that the business model – filing lots of lawsuits and settling for small amounts – will not go away and that at most Baek Family Partnership will make plaintiff’s attorneys more cautious about how they find clients and what kind of deal they make with them.
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¹ See my blog at Polar Vortex
² Under Title III of the ADA a plaintiff can obtain an injunction to stop future ADA violations, but is not entitled to damages or any other financial reward. The plaintiff’s lawyers, on the other hand, are entitled to legal fees.
³ See my 2013 blog, Curb cuts and accessible parking. We have seen the same kind of litigation involving spam faxes and improper telemarketing calls to cell phone numbers. As long as the settlement amounts are modest the defendants treat it as a cost of doing business and continue their old practices. The difference in ADA cases is that the defendants are often small businesses and even a modest settlement is enough to make the business unprofitable.
(4) After you finish this blog just search for “outrage” in my earlier posts, including Standing for serial plaintiffs.
(5) Almost all ADA lawsuits are filed by testers, and courts recognize that groups with an interest in disability rights may engage in “testing” by having plaintiffs go look for violations. Similarly, and individual can decide to be a “tester” and go looking for lawsuits. These practices raise questions about standing to sue, but they are not barratry. Barratry occurs when the lawyer is the driving force behind the lawsuit, and especially when the lawyer pays someone to go out an suffer an injury that the lawyer can sue on.