What's a "drive-by lawsuit"?
The following is a script from “Drive-by Lawsuits,” which aired on Dec. 4, 2016. Anderson Cooper is the correspondent. Katherine Davis and Sam Hornblower, producers.
The Americans with Disabilities Act has helped improve the lives of tens of millions of people. It’s lessened discrimination against them and made everyday life more accessible. Because of the law, every business that serves the public -- all 7 million of them in America -- has to make sure disabled customers have equal access, and if businesses don’t comply, they can be sued without warning.
You might think you have to be a customer of a business to file a lawsuit against it, but in some states you don’t. You can simply drive by a store or restaurant, and if you see a sign in the wrong spot, or a ramp that’s off by a few inches, you can sue. They are called drive-by lawsuits, and some lawyers are filing hundreds of them against businesses that often have no idea they have done anything wrong.
At first glance, this convenience store in Fort Lauderdale, Florida, may appear to be in compliance with the Americans with Disabilities Act. There is a parking space for the disabled, and an access ramp to the store. But the Americans with Disabilities Act has thousands of very technical regulations, and this store is in violation.
Nolan Klein in parking lot: What we see here are really sort of the typical red flags that attract lawsuits.
Anderson Cooper: So, I mean, there’s a parking space here.
Nolan Klein: There is a space. It’s not the right dimensions. It needs to be a van space. That means this has to be 8 feet, this has to be 5 feet.
Attorney Nolan Klein says that disabled parking sign is also in the wrong spot – and it doesn’t say the words “van accessible.” That access ramp isn’t right either.
Anderson Cooper: What’s wrong with it?
Nolan Klein: Under the law, this is not an access ramp. So this has to be on an accessible route, which is sort of the area that they tried to create there, but this is supposed to be 5 feet long.
Mike Zayed, who has owned the store for 18 years, says no disabled customer had ever complained about the ramp, the sign, or the parking space, but that didn’t stop him from having to hire attorney Nolan Klein when he got sued.
Anderson Cooper inside store: The person who sued you, you don’t believe they were actually a customer in the store?
Mike Zayed: No, no.
Anderson Cooper: You think they just drove by or stopped outside?
Mike Zayed: That’s what I believe. The lawyer he was just driving around.
That’s why it’s called a “drive by lawsuit.” When a lawyer or a disabled person notices violations outside a business and files suit. Mike Zayed doesn’t think the person who sued him was a real customer because the man claimed he encountered barriers inside the store that didn’t exist.
Mike Zayed: To me, I feel its not fair. Because to me, I feel like that’s stealing. We work hard for our money and these people just driving around in their car, here you go, this violation here, and there.
Anderson Cooper: Do you know other storeowners who have been sued?
Mike Zayed – I have 2 guys I know in Broward, they get sued twice.
Anderson Cooper: Same lawyer?
Mike Zayed: Same lawyer, same guy.
If you think drive by lawsuits – hatched from the comfort of a car – are a novel way to enforce a law, there’s another kind of lawsuit that requires less work…lawyers call them “Google lawsuits.”
Anderson Cooper: What’s a Google lawsuit?
Nolan Klein: A Google lawsuit is where the suspicion, at least, is that the property was spotted on Google, Google Earth, Google Maps, whatever the case may be, and you could see certain things from Google. You could see if there’s a pool lift or not.
A pool lift is a seat that can help disabled people get in and out of the water. Since 2012, all hotels and motels in America are required to be accessible to the disabled, which, in most cases, means having a lift permanently attached to the side of their pool.
This is what a pool lift looks like from Google Earth. In the comfort of your own home, with a few clicks of a mouse, you can see if a pool near you has one, and if they don’t appear to have a pool lift, like many of these hotel pools we looked up, you can file a lawsuit…just like that.
Perry Pustam runs the Adobe Hacienda Motel in Hollywood, Florida. He has a pool lift now, but says he didn’t know he was required to install one until he got sued in what he suspects was a Google lawsuit.
Anderson Cooper: Did a disabled person actually come here…
Perry Pustam: No.
Anderson Cooper: …and want to use the pool?
Perry Pustam: At no point in time we ever had a customer on the property that requested it or that was even in a room that requested it.
It turns out the same man who sued him sued dozens of other motel owners as well, all for pool lift violations.
Perry Pustam: It was about 60 something lawsuits in 50 something days.
Anderson Cooper: 60 lawsuits in 50 days?
Perry Pustam: 60 plus, yes, in less than 57 days.
Anderson Cooper: All from the same attorney?
Perry Pustam: Same attorney using the same client.
At last count, that attorney has sued nearly 600 businesses in just the last two years, many for not having pool lifts. Perry Pustam ended up paying $3,000 to buy a lift, that so far, no one has ever used. He also spent thousands of dollars in attorney’s fees. He told us he believes these lawsuits are sometimes simply a money-making venture for lawyers because under federal law, business owners have to pay both sets of attorney’s fees, and if you don’t settle, it can end up costing you hundreds of thousands of dollars in court.
Perry Pustam: It’s a game for these attorneys. Basically that’s what it is.
Every private business in America that’s open to the public, millions of shops, restaurants, movie theatres, grocery stores, laundromats, nail salons , and more, have to be compliant with the Americans with Disabilities Act. But business owners we spoke to say it’s almost impossible to be totally compliant with the law because the requirements are very specific – and there are thousands of them. You can find them in this 275-page manual that details everything from the exact height of a mirror in a bathroom, to the maximum thickness of carpeting, to the angle at which water can come out of a drinking fountain. Every doorway, every door handle, every surface you walk on, every light switch, outlet, counter – you name it – are all covered by the Americans with Disabilities Act, which was first passed in 1990. In theory, businesses only need to comply if it’s readily achievable to do so, but in reality, if you’re not meeting every single requirement, you can be sued without warning.
Anderson Cooper: Essentially, you’re saying that after 25 years there really is no excuse for any business not to be compliant?
John Wodatch: Well, people who say that they need a grace period. I would say 25 years is a grace period enough.
John Wodatch is the retired chief of the Department of Justice’s disability rights section and was part of the team that wrote the Americans with Disabilities Act.
Anderson Cooper: Is the law, as its written, too specific, that a mirror has to be 40 inches off the ground as opposed to 39 or 41?
John Wodatch: My first answer is no, it’s not. I think the specificity is needed. Because I think inches matter. If you have a lip on a curb ramp – a wheelchair user is likely to tumble into the street and injure him or herself.
Wodatch points out the number of disability access lawsuits is small compared to the tens of millions of Americans who have some form of disability.
Anderson Cooper: Are some people taking advantage of the law?
John Wodatch: I think some people are-- there are some people who are engaging in what I think people have called shakedowns or frivolous lawsuits, where they are not really looking at significant change for people with disabilities, they’re looking to use the law to make some money.
When the Americans with Disabilities Act was being written, the Department of Justice was concerned about people taking advantage of this part of the law. They intentionally did not include monetary damages for plaintiffs in federal lawsuits. The problem is now many states do provide for damages, and John Wodatch says, that has led to abuse, most notably in California, where, with limited exceptions, business owners have to pay not only lawyers fees and remodeling costs, but also a minimum of $4,000 in damages each time a disabled customer visits a business with a violation. That can add up to hundreds of thousands of dollars in some cases. Attorney Tom Frankovich is one of the top filers of disability access lawsuits in California.
Anderson Cooper: businesses here hate you
Tom Frankovich: Well I would say that.
Anderson Cooper: How many lawsuits have you filed?
Tom Frankovich: 2000, 2500. I mean, I don’t really keep track.
Anderson Cooper: Do you know how much you’ve made in the 2000 cases you’ve filed?
Tom Frankovich: Oh, I wouldn’t dare to say.
Anderson Cooper: Millions?
Tom Frankovich: Yeah I would say that.
Anderson Cooper: Couple million?
Tom Frankovich: Could be.
Anderson Cooper: Is it fair to say you’re scaring people to comply with the law?
Tom Frankovich: I hope.
Anderson Cooper: You hope?
Tom Frankovich: I hope.
Anderson Cooper: So when people call you an extortionist, when people call you a shakedown artist, you say what?
Tom Frankovich: I’m acting as a private attorney general. And I’m enforcing a law that precludes discrimination by you against people with disabilities.
Anderson Cooper: When you’re filing hundreds of lawsuits for one client – is that fair?
Tom Frankovich: You know, it’s more than fair Anderson. Because what people don’t realize is that I represent activists. What you find is that it takes courage to be an activist.
But not everyone is an activist. Some attorneys are being accused of recruiting disabled clients to file these lawsuits. Daniel Delgado owns a medical equipment repair shop in Madera, California. He is in a wheelchair due to childhood polio and has a learning disability. He didn’t know much about the Americans with Disabilities Act until, he says, he was approached by attorneys Randy and Tanya Moore.
Anderson Cooper: What did they say to you?
Daniel Delgado: They goes, how would you like to make $100,000, $200,000 a year and he goes all you gotta do is ADA. I said what the heck is ADA?
He says he was told he would make $1000 per lawsuit and would help improve access for the disabled.
Anderson Cooper: They were saying to you not only were you going to make this money, but it was actually going to improve life for disabled people?
Daniel Delgado: Exactly.
Anderson Cooper: And that’s important to you.
Daniel Delgado: That was more important to me than anything.
Daniel Delgado told us Randy and Tanya Moore sent him to businesses he would not have otherwise visited with instructions to buy something and get a receipt. He signed off as a plaintiff on dozens of cases and says he was asked to recruit some of his disabled friends – including John Morales – to file lawsuits as well.
Anderson Cooper: What kind of businesses did you visit, John?
John Morales: A variety. I went to grocery stores, I went to restaurants, I went to a couple of just different stores.
John Morales: She would tell me to look for if there’s accessible seating, if there’s a table for the handicapped, or if there’s a restroom that you can go into. She told me what to look for so I started doing that.
John Morales says the law firm assured them businesses would get a warning before being sued.
Anderson Cooper: Is that what happened?
John Morales: Never happened as far as I know.
Anderson Cooper: Do you think that’s fair?
John Morales: No, I don’t.
Anderson Cooper: Why?
John Morales: And I wasn’t happy with it. Why don’t I think it’s fair? I just don’t think it’s fair. I think that the business owner should have the opportunity to fix that. You know, everybody should have a second chance, you know.
Both men say they were paid, but nothing close to what they were entitled to under the law. The Moores say that John Morales and Daniel Delgado both signed fee agreements that gave them unlimited power of attorney to initiate lawsuits and negotiate settlements. Delgado and Morales say they only saw the last two pages of the contracts, and didn’t know the details of the agreements they signed.
Anderson Cooper: When lawsuits were settled, did you know how much money the attorneys were making?
John Morales: No, never did.
We wanted to talk to Randy and Tanya Moore, but they refused our request for an on camera interview. They deny asking Daniel Delgado to recruit disabled clients and say they never told him or John Morales that businesses would get advance warning before being sued. The Moores have filed more than 1,000 lawsuits related to the Americans with Disabilities Act and have earned, by our estimate, at least $3 million doing so. They are now being sued by Daniel Delgado and John Morales for fraud. Both men say, while the lawsuits did improve access for the disabled, they have also made some business owners wary of dealing with disabled customers.
Anderson Cooper: You think, John, this is having a negative effect.
John Morales: Yes.
Anderson Cooper: On businesses’ perception of disabled people?
Daniel Delgado and John Morales: Yes.
John Morales: And so instead of us doing a good thing, I felt like because of the advantage they took on us, coming against all these businesses, we did more harm than good.
In places like California and Florida, there is little doubt that disability lawsuits have led to improved access. Most states and the District of Columbia currently award cash damages for plaintiffs who file such lawsuits and with so many businesses around the country still not in compliance, it may not be long before you start hearing about these kind of lawsuits in a town or city near you.
Correction: An earlier version of this script misspelled the name of the town Madera in California. This version has been corrected.
Editor’s Note: In an email to CBS dated October 7, 2016, which was received prior to the airing of the report, Tanya Moore says: “No lawsuits were ever filed without client permission, nor would the fee agreements give me authority to do so. There was a fee agreement in every case wherein the clients asked that a lawsuit be brought by the Moore Law Firm against a specific business they had visited.”
