By Minh N. Vu
Seyfarth Synopsis: The Plaintiff in Acheson v. Laufer dismisses her lawsuit with prejudice and asks SCOTUS to dismiss its pending review based on mootness.
In an unexpected and bizarre turn of events, Deborah Laufer, the plaintiff in the much-watched Acheson v. Laufer case pending before the U.S. Supreme Court (“SCOTUS”), has decided to dismiss that case and all of her other pending ADA Title III lawsuits with prejudice. What is more, she filed a brief in the matter before SCOTUS stating that her case is now moot and should be dismissed. The hotel defendant, Acheson, intends to oppose the requested dismissal.
Ms. Laufer’s stated reason for abandoning all of her pending ADA Title III lawsuits is the bizarre aspect of this recent development. In her brief, she informed SCOTUS that an attorney who had represented her in the past in unrelated ADA Title III cases, Tristan Gillespie, had recently been suspended from the practice of law by the U.S. District Court for the District of Maryland for unethical behavior. She told SCOTUS that she did not want “the allegations of misconduct against Mr. Gillespie” to “distract from the merits of her ADA claims and everything she has sought to achieve for persons with disabilities like herself. She accordingly has decided to dismiss all of her pending cases with prejudice.”
A review of the Order suspending Mr. Gillespie and Report and Recommendation (the “Report”) from the three-judge panel that presided over disciplinary proceeding reveals unsavory details of one law firm’s handling of its ADA Title III “tester” litigation. The thirty-one page Report recounts that Mr. Gillespie worked for the Thomas Bacon P.A. firm when he filed hundreds of ADA Title III lawsuits on behalf of Laufer and another disabled individual while simultaneously working full-time as an Assistant District Attorney for Fulton County, Georgia. The Bacon Firm had filed over 600 lawsuits on behalf of Laufer and nearly 200 for the other tester plaintiff. In fact, Thomas Bacon of the Bacon Firm represented Laufer before SCOTUS until this most recent filing requesting dismissal of the matter.
Among other findings, the court in the Gillespie disciplinary proceeding found that Gillespie (1) inflated his hours in many fee petitions, (2) never discussed the terms of any settlement agreements with his clients (instead giving them to his investigator/“expert”, Daniel Pezza, to collect signatures), (3) dismissed over 100 pending ADA lawsuits before his disciplinary hearing without consulting with his clients who were the plaintiffs in the actions, and (4) made payments to his investigator and so called “expert” Pezza who also happened to be the father of Laufer’s grandchild, thereby raising the possibility that Gillespie was inappropriately sharing fees with Laufer, in violation of ethics rules. The Report stated that the “arrangement smacks of purchasing an interest in the subject matter of the litigation in which the lawyer is involved” and was, therefore, “highly problematic.” However, as Laufer’s relationship with Pezza did not come to light until the end of the investigation, the Court did not make any findings on whether Laufer received any money from Pezza. Laufer submitted a Declaration in the SCOTUS matter denying that she ever received money from Pezza.
The Report is a must-read for lawyers representing ADA Title III serial plaintiffs as the Court examined in great detail the types of questionable practices that should be avoided, such as the making of demands for attorneys’ fees in settlement agreements that are much higher than the fees actually incurred. Gillespie tried to argue that his inflated fee demands represented future fees to be incurred for monitoring compliance, but the court was not persuaded.
Returning to the pending lawsuit before SCOTUS, it is unclear whether the Court will dismiss this case – the first ADA Title III case to reach the high court in eighteen years — because it is moot. While that is the most likely outcome under ordinary circumstances, the unsavory facts surrounding Laufer’s mass voluntary dismissal, along with the sharp conflict among the Courts of Appeals concerning the standing of ADA Title III “testers” to assert claims, present a strong case for SCOTUS to move forward with its review.
Stay tuned for developments.