It’s Gotten Much Worse: ADA Trolling A Year Later

Epigram

“More than 240 businesses nationwide have been sued in federal court
since the start of 2015,” Sara Randazzo, The Wall Street Journal.

Introduction

Nearly a year ago, I published an article titled, “Stop The ADA Trolls” describing how the Pennsylvania law firm Carlson Lynch Sweet & Kilpela LLP (Carlson/Lynch) was perpetrating a lawsuit blitzkrieg against companies with web sites that an automated testing tool flagged for having some to many accessibility problems. We followed that article up with two more on the topic. “Stopping The ADA Trolls: “Carlson/Lynch Should Sue Itself” described that the law firm behind the counterproductive strategy of “threaten a lawsuit first” has accessibility problems on its own web site similar to those of the companies it was suing, they are truly hypocrisy central. The third article in the series, “Stopping The ADA Trolls: Something You Can Do” was a call to action asking our readers to write a letter to the court in one of the Carlson/Lynch cases objecting to a horrible settlement agreement before the court. I’m happy to report that, largely due to friend of the blog Kelly Pierce, we were able to coordinate a number of letters to the judge and the settlement proposed by Carlson/Lynch in that case has been rejected and we await a final ruling on a much better outcome suggested by many of us in the letters we sent with support from some at NFB.

Recently, the Wall Street Journal ran an article titled, “Companies Face Lawsuits Over Website Accessibility For Blind” about the Carlson/Lynch lawsuit craziness. Much of this article is based on details I’ve extracted from the WSJ piece. I’m not going to provide individual links to sources for all of the the factual information included here, if it doesn’t have a source, assume I got it from the WSJ article which I encourage you to read in full.

I’d also like to give myself a pat on the back here. I posted the first article in this series almost a full year before the Wall Street Journal got to the story. That’s right folks, the 5500 or so of you who read that first article got to witness me scoop WSJ. But, before I break my arm vigorously pounding on my shoulder in celebration, I must also say that the reality on the ground regarding this situation is even more grim than it was a year ago when I wrote the first article in this series. We’ve at least two more law firms who’ve joined Carlson/Lynch in using the ADA to troll businesses for dollars and, as it says in the epigram, more than 240 cases had been filed in federal court and that number was from November 2016..

Looking At the Numbers First

More than 240 businesses have been sued in federal court, all in cases initiated by Carlson/Lynch, a South Florida attorney named Scott Dinin and most recently an Austin, Texas attorney named Omar Weaver Rosales has been sending letters to businesses with the simple shakedown demand of “send me $2000 and I won’t sue you.”

From WSJ, “Most” settle for between $10,000 and $75,000 with all of the money typically going to attorneys’ fees and expenses.” These numbers do not, however, reflect the count of companies who have received letters from Carlson/Lynch, Dinin or Rosales and may have chosen to settle in a private deal to avoid actual litigation before court filings.

In some cases, the settlements have given about $1500 each to one or two named plaintiffs, people who are actually blind. With almost all of the money going to the attorney’s fees and expenses, let’s do a little math. The average settlement given the “between $10-75,000 range) would come to $42,500 per settled case, we’ll be magnanimous and give $3000 to a pair of named plaintiffs leaving the mob of attorneys with $39,500 per case, multiply by 240 cases and we find the lawyers with a tidy $9,420,000 for their trouble and this doesn’t include anything they may have gained from out of court settlements that aren’t included in the public record.

From the WSJ article, “Attorney Carlson said his firm has sent “many hundreds of letters” and only targets larger companies, because he believes that is more likely to make industries aware of the issues than suing mom-and-pop businesses.” And, I asks, “Then how do you explain the Oklahoma pizza parlor you filed a suit against about which I reported in the first article in this series.” If, indeed, Carlson/Lynch has chosen to focus on larger companies only, it’s because the first thing every first year law student learns in her tort class is to never sue anyone with little or no money. I’ve heard directly from some of the companies to which Carlson/Lynch sent threat letters and none of those who contacted me were exactly household names.

Two More Trolls Join the Party

When I wrote the first draft of this article, I only mentioned Carlson/Lynch but as I did my normal fact checking and research into this story, I found two more law firms now using similar tactics to extort dollars from businesses over the accessibility of their web sites. Because I’ve only learned of these two other attorneys in the past two weeks, I have not been able to do a deep dive into all of the cases they have filed in federal courts. I’ve a file containing a list of well over a hundred cases filed by Dinin into which I’ve not been able to do much research. I’ve loads of material for the next article in the series which will be specifically about the firms who’ve joined Carlson/Lynch in using this strategy.

Scott Dinin

Miami attorney Scott Dinin, has sued “at
least 108 mall retailers, restaurants, banks and others” in the past year over ADA related issues. Diamond and Bruce Carlson both told WSJ that these cases “aren’t big money makers” but I think the little bit of arithmetic in the previous section disputes that claim.

I must admit to finding Dinin’s prose skills to be quite excellent. His filings in Win Dixie! and other cases brings some actual drama to what is typically the mind numbing boredom of reading this kind of stuff. I do not approve of his tactics but do appreciate that reading his work is at least a bit more entertaining than most of the things I’ve had to read covering this story.

Diamond is representing a single blind plaintiff in more than 30 separate web accessibility related cases. It’s not just Carlson/Lynch anymore, the trolling virus is spreading.

Omar Weaver Rosales

Austin attorney, Omar Weaver Rosales appears to be taking ADA trolling to a level of pure and unadulterated shakedown. One could in a twisted kind of way actually view the Carlson/Lynch and Scott Dinin lawsuits as some kind of hyper-aggressive advocacy for web accessibility (I obviously don’t hold this position myself but can see how some could come to this conclusion) because their threat letters and some of their settlements in the public record did lead to improved accessibility on some of the defendants’ web sites.

Rosales, according to this article from a Texas news radio web site, is simply sending letters demanding $2000 from those he alleges have inaccessible web sites with a threat to sue if they do not comply. He makes no demands for his targets to make any changes to their web sites, he just asks for $2000 or he’ll file the case. A $2000 payoff to a corrupt attorney (he’s been sanctioned by the state of Texas according to the same news article) is a whole lot less expensive than doing actual remediation or even calling an attorney to ask for advice on the matter.

Not long ago, a clever Florida con man came up with a terrific albeit illegal, immoral and unethical way to make a lot of money. He bought himself one very nice linen sport jacket and spilled red wine onto it. He took a photograph of the jacket with the stain and he already had a picture he took of it when new. He got a single dry cleaning receipt for a around $25. He then sent copies of the photos and the dry cleaning receipt to literally thousands of restaurants around Florida and the southeast asking them to pay the cleaning bill. Roughly sixty percent of the restaurants complied as it’s a whole lot easier to open up the cash drawer and pull out $23.75 and send it to a person than to spend a minute investigating the veracity of the claim. In my mind, Rosales is doing exactly this but with ADA as a bigger hammer than a dry cleaning bill.

The Outcomes

From WSJ, “Judges often push the lawsuits into mediation, which then are resolved in private settlements, according to a review of nationwide court
dockets. The settlements frequently include a timeline in which a company agrees to improve its website and undergo future monitoring, lawyers involved say, but some entail little more than paying attorneys fees. So far, the suits primarily target websites, but lawyers expect claims against mobile applications could be on the horizon.”

This does suggest that some web accessibility improvements may result from these lawsuits but, while that may happen “frequently,” the one thing for certain is that the lawyers are getting paid in all cases.

And, no, the final sentence of the paragraph quoted from WSJ didn’t escape my attention. Without attribution, Wall Street Journal says that lawsuits over mobile apps may be on the horizon. These attorneys have found a cash cow and are looking to grow the business.

The Legal Chaos

The WSJ article describes a chaotic system with different federal districts and circuits interpreting ADA in inconsistent opinions. There is no national standard and, although the ADA Restoration Act was passed under George W. Bush’s administration, the Obama DOJ, the agency charged with making its rules and enforcing the law, has postponed until “autumn 2018” publishing its guidelines regarding online properties. The trolling attorneys are exploiting a strategy lawyers call “venue shopping” and sue in those districts and circuits favorable to their cause. The US Supreme Court has not ruled on this matter and, given its current make-up, I doubt it will any time soon.

The Fallout

Once again, I’m going to point you to Laney Feingold, her blog and the article she wrote recently about ADA, the election and the possible poor outlook for civil rights and people with disabilities. The television program 60 Minutes ran a hit piece on ADA, focussing on brick and mortar businesses being sued and Laney wrote an excellent piece about it here. Laney’s article has a link to the 60 Minutes piece and you can watch it via that link.

As we now have at least two law firms into double digits in caseload, I think the first bad result of the Carlson/Lynch activity is that other attorneys are jumping on the ADA Internet accessibility trolling bandwagon to ride the gravy train of what I’ll call robo-suits. You set your web checker into web crawler mode and sue all violators worth suing, which in the Carlson/Lynch case means a company as small as a Tulsa pizza joint. The cost is minimal, all of the lawsuit threat letters offering a less costly way out than litigation (a statement that reminds me of mobster movies, “you got a nice little business here, it’d be terrible if something would happen to it.) are virtually identical (some name specific consulting companies, most say that Carlson/Lynch would be happy to recommend one) so the only labor there is changing the name of the accused and then sending the threat letter to the unsuspecting defendant. For an average return of $42,500 this seems like a highly profitable protection racket being run by these law firms.

Is There Anything We Can Do?

Informally, I have been trying to help any company or organization who writes to me through the contact form on this site. I am not an attorney nor am I a web remediation specialist but I try to help as I can with referrals to remediation businesses with impeccable reputations, to an attorney who is handling the defense in dozens of these cases and I hope to find a way to organize a lot of letters from other blind people objecting to our inclusion in a class represented by attorneys we do not feel represent our desires, ask that said counsel be replaced by one we feel more appropriate or ask that the class be decertified entirely. To be perfectly honest, I don’t know how to do this but some people have offered to help me figure it out.

If you’re a victim of one of these threat letters, please do contact me and I’ll do what I can to help out as I’ve done with a number of companies during 2016. I do not profit from this, my time is gratis and I’ve no business relationship with any of the companies I might recommend to help you with your remediation.

In the article on the Texas radio station site, I also saw a glimmer of hope. Long time civil rights attorney, Jim Harrington announced he is forming the Texas ADA Defense Project. The Defense Project will combat “exploitative” litigation threats, such as those sent by Rosales, that could undermine the integrity of ADA law.” I do not know Harrington nor have I communicated with him in any way but, rest assured, I will be contacting him in the coming weeks. Stay tuned, I’m sure he’ll have ideas that an old crackpot, loudmouth stoner with a blog like me would never think about as the law just ain’t my beat.

Conclusions

The ADA trolling lawsuits have increased in pace over the eleven months since I wrote the first article. No fewer than 240 of such cases have reached federal courts and untold hundreds may have paid off the offending attorneys to stay out of court.

The right way to approach accessibility is through structured negotiations (a subject on which Attorney Laney Feingold has just published a book) and constructive engagement. Laney and other ethical law firms like DRA use this approach, they make great strides in getting the companies with whom they work to make real accessibility improvements and they are the forces of good in this messy situation.

I will try to continue to cover this story as best as I can and I hope to publish more articles on the blog in general this year.