By: Pamela C. Huynh, Minh N. Vu and John W. Egan
Seyfarth Synopsis: Concerned that serial plaintiffs are not actually ensuring that defendants are removing access barriers under their confidential settlement agreements, EDNY Judge Cogan takes charge.
Be careful what you ask for – that’s the adage that a serial plaintiff and her attorney should have considered before asking U.S. District Judge Cogan to make defendants pay the $9,000 they still owed under a settlement agreement resolving an ADA Title III access suit. Instead, they got a harsh rebuke and a decision that conditioned their judgment for the overdue payment on their (1) disclosure to the court of all of confidential settlement agreements for past EDNY lawsuits, and (2) submission of evidence that remediation has been completed under all of those agreements.
The plaintiff in this case had sued the defendants, a restaurant and an affiliated property company, with a “cookie-cutter complaint” listing more than 15 pages of physical accessibility violations. The parties resolved the case in open court with an agreement that required a $10,000 settlement payment and only a handful of changes to the restaurant. When the defendants failed to pay $9,000 of the settlement, the plaintiff filed a motion with the court seeking an order compelling payment, but did not reference any of the remediation work required under the agreement.
Judge Cogan was not pleased. He first pointed out that he had no authority to order injunctive relief to remedy a breach of the agreement, and that the only relief available was a judgment for $9,000. Next, Judge Cogan expressed concern “that Title III of the ADA has primarily become a tool not used to ensure disabled persons can access privately operated public accommodations but instead used by a specialized plaintiff’s bar against ‘mom and pop’ operations (i.e., bodegas, bars, restaurants, retail and convenience stores) to extract attorneys’ fees.” Judge Cogan also pointed out that the vast majority of ADA Title III settlements result in a “plain vanilla stipulation of dismissal (or a notice of dismissal if the defendant agrees to settle before appearing),” where, “[f]or all the court knows, nothing happened except the payment of a nominal sum to the plaintiff and the payment of a far more substantial fee to the plaintiff’s lawyers.” “[T]o ensure that this action has been brought for plaintiff’s benefit, and not the benefit of her attorney,” Judge Cogan stated that the court would stay the judgment for the outstanding $9,000 until the plaintiff proved that the remedial changes required in the agreement at issue — as well as in all other agreements reached by her in cases filed before the court— have been fully implemented. The decision also required plaintiff to provide copies of all of her other settlement agreements from cases before this court for its review.
Plaintiff promptly filed a letter seeking clarification of the decision in which she also pointed out that the time for the defendants to complete the remediation had not yet expired so she did not reference it in her original motion. In response, the court issued a Final Injunction and Order that differed from the prior decision. The Final Injunction and Order entered a judgment against defendants, jointly and severally, for the $9,000 owed under the settlement agreement, and directed the defendants to complete the agreed-upon remediation by May of this year. The Court then issued a clarifying Order, that same day, indicating that “[t]he only cases requiring proof of performance are those that have been brought before the undersigned.”
While the Final Injunction and Order and clarifying Order tempered the initial decision, the matter is another example of district judges in New York becoming more frustrated that Title III of the ADA has become “a means of securing fees for plaintiff’s attorney[s]” and not a means of improving accessibility for individuals with disabilities. It appears that judges in New York may be more willing to take matters into their own hands to ensure that when serial ADA litigants resolve cases, remediation of access barriers is actually the result.