By Minh N. Vu

Seyfarth synopsis:  Ninth Circuit judges are getting tougher on lawyers who represent serial plaintiffs by reducing their fees and threatening sanctions for citing outdated law.

In 2021, plaintiffs filed 11,452 federal lawsuits alleging violations of Title III of the Americans with Disabilities Act (ADA). More than half (5,930) of those were filed in California.  While most judges in California have not seemed particularly concerned that the vast majority of these cases are filed by repeat plaintiffs, the patience of some judges is wearing thin. 

In a recent decision concerning fees awarded to a prevailing serial plaintiff, the Ninth Circuit made rather pointed comments about serial plaintiffs and their attorneys.  Quoting from a law review article advocating for lawsuit reform, the Court said:  “The ADA satisfied the need for meaningful legislation for the protection of individuals with disabilities; however, one of the unforeseen consequences of this statute was the widespread abuse taking form due to the actions of serial ADA plaintiffs.”  The Ninth Circuit then devoted several pages of its opinion to how these “get-money quick” lawsuits work and lamented that “the number of ADA cases in the Central District of California has ballooned from 3 percent of its civil docket to roughly 20 percent in recent years.”  The Court noted that “ [a] hallmark of abusive ADA litigation is the use of form complaints containing a multitude of boilerplate allegations of varying merit.” 

The Ninth Circuit Court concluded that in the federal trial court, District Judge Wu’s application of a blended $300 rate for all attorneys working on a case and a 65% reduction of all fees was warranted due to the routine nature of the work and the defendant’s lack of opposition on the merits.  With these reductions, the plaintiff’s firm received $10,000 in fees instead of the $34,000 it demanded for work through summary judgment.

The Court rejected plaintiff’s argument that the district court had failed to adequately explain the basis for the blended rate and downward multiplier.  It held that the district court “was not required to write the equivalent of a law review article justifying its fee award; it only had to provide a ‘concise but clear explanation” of the grounds for its decision.’”  It found the district court did that, finding that the ADA serial litigation is not complex and did not require partner level work, let alone two partners billing at $500 per hour. 

This decision should be useful for businesses fighting fee petitions filed by serial plaintiffs in routine cases.

In another recent decision, District Judge Otis Wright of the Central District of California made clear his intolerance for sloppy work by plaintiff’s attorneys in ADA Title III cases.  Judge Wright denied the plaintiff’s motion for a default judgment against a liquor store because, among other things, the plaintiff had failed to establish that the alleged barriers had denied her access to the public accommodation, or that the removal of the barriers was readily achievable.  On the latter issue, the court observed that plaintiff had not met her initial burden “to plausibly show how the cost of removing the architectural barrier at issue does not exceed the benefits under the circumstances,” as required by controlling Ninth Circuit precedent.  Indeed, the court concluded that the plaintiff had ignored this precedent altogether.  The court ordered plaintiff to show cause as to “why a sanction in the amount of up to $8,001 should not be imposed on counsel for repeatedly citing to law that was abrogated by the Ninth’s Circuit’s decision in Lopez v. Catalina Channel Express.” 

These decisions show that courts share businesses’ frustration with ADA complaints that do not contain specific factual allegations, seek unreasonable fees, or fail to heed controlling law.

Edited by Kristina Launey