Crusade or scam? Businesses fight back against serial ADA lawsuits

Tawfic “Tony” Abufarha, owner of a small shopping center and convenience store on Austell Road in Cobb County, was busy ringing up a steady stream of customers as he described a visit from a patron from two years ago.

He never saw the woman in the wheelchair, but his brother did.

“This lady just came out of nowhere. She didn’t complain or say anything,” he said. “She knew what she was looking for.”

The woman was a “tester” working for the Atlanta law firm of Craig Ehrlich, which has carved out a niche in Georgia by filing hundreds of federal lawsuits under the Americans with Disabilities Act. She was looking for ADA violations, and she found them.

A few weeks later, Abufarha was served with a lawsuit claiming violations ranging from inadequate parking, cramped aisles and multiple deficiencies in the customer bathroom. It was one of 15 cases Ehrlich filed that month against convenience stores, shopping centers, coffee shops and a bowling alley where his clients claimed facilities were not in compliance with the 29-year-old law requiring public places make specific accommodations for the disabled.

The filing of such ADA cases is a tidal wave-sized trend. There have been 827 ADA cases filed in Georgia’s federal courts since 2015. That’s a 370% increase over the number of cases filed the prior five years.

The bulk of those cases track back to Ehrlich, whose website proclaims “Our Goal is Universal Accessibility” and who pays his clients finders’ fees to root out alleged ADA violations. “If you or any of your friends or family have experienced issues accessing a business or public facility, contact us for assistance!” the website beckons.

Ehrlich’s impact is huge and recent. The firm has filed more than 550 ADA lawsuits in the North Georgia Judicial Circuit, 86% of which have been filed in the past two years. Most of those cases list one of a half dozen of Ehrlich’s testers as plaintiffs, some of whom are party to more than 100 lawsuits since 2017.

Behind the numbers is either an all-out fight for civil rights or an unethical attempt to wring out quick settlements from small businesses who decide it’s cheaper and easier to pay Ehrlich than to fight him. A class action lawsuit targeting the firm filed last month in federal court in Atlanta may sort that out.

The lawsuit accuses Ehrlich, a business associate, and several of Ehrlich’s more prolific clients of running an organized criminal campaign to squeeze small, largely minority-owned businesses with no real motive to make them more accessible to the disabled.

“Mr Ehrlich is using the system and filing drive-by lawsuits against small business owners who don’t have the means to hire lawyers,” said Hassan Elkhalil, the Cobb County attorney suing Ehrlich. “They want a quick settlement. They get the settlement and don’t even follow up on the violations.”

Ehrlich’s defense attorney, Bruce Brown, used a barnyard expletive to describe the merits of the proposed class action. Elkhalil’s clients may not like that they were sued, but by and large, they settled the cases and made the required modifications because their businesses did not properly accommodate the disabled.

“It’s only abusive if you think the ADA is not important,” he said.

When Congress passed the ADA in 1990, it didn’t send an army of federal inspectors out to inspect every restaurant and gas station. Instead, the law requires the disabled community to file complaints to ensure compliance, Brown said. Business owners know — or should know — they have to follow the law, he said.

“You can follow the law or you are going to get sued. It’s no different from any other situation,” he said.

Brown has yet to file an official response to the class action, but he said his clients’ lawsuits are “entirely proper.” If they weren’t, then the businesses should not have settled.

“Each individual case would be the place to raise questions.,” he said. “You don’t file a lawsuit about other lawsuits.”

‘Slapped with a lawsuit’

Abufarha’s convenience store, with two rows of gas pumps, looks like any other mom-and-pop business on the heavily commercial corridor between Austell and Marietta. It’s not a flashy Quiktrip. Inside, it has more of a bodega ambiance, but the nicest part of the place is the bathroom.

“Customers say they come in here just to use the bathroom,” Abufarha said, laughing.

It should be nice. Abufarha said the newly remodeled bathroom cost about $15,000, including legal fees.

“You had to buy the rails, the toilet, the sink, the door,” he said. “Everything had to be ADA compliant.”

The businesses targeted by Ehrlich’s ADA tester clients are like Abufarha’s: small businesses without deep pockets, often owned by minorities, Elkhalil said. Much of Elkhalil’s law business is immigration work and some of those clients came to him when they were sued.

“Most of our clients work 10-15 hours a day. They just want to make ends meet,” he said. “Most of the time they don’t know how things work, how the legal system works. Then they are slapped with a lawsuit.”

They are easy targets for people recruited by Ehrlich who are looking for businesses to sue, he said. Elkhalil said his clients never knew they had a problem to correct before they were already being advised to settle.

Once they are filed, settlement is a relatively quick affair. More than half are settled in about three months, records show. While settlements are largely private, they typically cost the defendant a few thousand dollars to pay the plaintiff’s lawyer and court costs.

‘It’s a big, huge scam’

Supposedly there is not much money to be made by filing such a suit. Plaintiffs can ask for court costs and money to cover their attorney fees, but generally they can’t sue for personal damages. But as these lawsuits have gained popularity across the nation, there’s evidence of chicanery in other cases.

Last month, a federal judge in Florida sanctioned a Miami attorney who filed more than 650 ADA cases across the state. The judge ordered the attorney to pay back settlements and pay other penalties after determining the lawyer and his disabled client illegally split the money.

An attorney in Sacramento, Calif., faces federal tax evasion charges related to fees collected by filing thousands of ADA lawsuits throughout that state.

The Elkhalil lawsuit in Georgia claims, without providing evidence, that Ehrlich splits the settlement money with his clients who then pocket the money without reporting it to the IRS as income.

Elkhalil said there are commonalities among the Ehrlich lawsuits, one of which is a fast offer for a settlement. “It’s a cash cow,” he said.

That was the experience of Elieen Mary Randman, owner of a small French-style bistro in Hapeville, when she was served with a lawsuit filed filed by another of Ehrlich’s clients, Tiawan Britton.

Britton, who has filed 35 such lawsuits in a little more than 15 months, claimed in the lawsuit to have been a customer of the café multiple times. The suit found problems with the available handicapped parking spaces and numerous problems with both the men's and women's restrooms, including the positioning of the paper towel dispensers, coat hooks and handrails.

Randman, who is not part of the class action, said she doesn't know Britton and doesn't recall the visit. But she said she had made accommodations over the years to become compliant with the ADA.

“We had a ramp that was ADA compliant. We had a bathroom that was ADA complaint. We didn’t have rails up. That was the only thing we didn’t have,” she said. “We wanted people to be comfortable. That’s the thing. People just want to go around and nitpick.”

Randman recently moved out of the space, but her business is still listed alongside her landlord as a defendant in the case. It’s a problem she said she doesn’t need.

“It’s a big, huge scam,” she said. “There are so many different stresses that come from being a small business owner. You’d think that America would celebrate that.”

A matter of civil rights

Georgia State University Provost Wendy Hensel, a law professor and ADA expert, said ADA lawsuits have “an absolutely legitimate purpose,” regardless of how many one person may file.

Many businesses have taken virtually no steps to comply with ADA, despite being the law of the land for nearly three decades, she said.

“It’s a far better bet to roll the dice and wait until somebody files a claim rather than come into compliance on the front end,” she said. “There is widespread non-compliance.”

And it’s not surprising to find attorneys who specialize in these kinds of suits.

"Going to litigation is time consuming. Who is going to do it for the one-off?" she said. "Again, the only real way to have some accountability is through private (legal)action."

And what of Elkhalil’s argument that the serial filing of these lawsuits hurts small businesses? Hensel said such arguments are beside the point. If a business is open to the public, it has a legal responsibility to be open to everyone, including the disabled, she said.

“This is a matter of people’s civil rights. The law is the law,” she said. “They shouldn’t have to ask you to do something. You should’ve already done something.”

About the Americans with Disabilities Act

The ADA was signed into law in 1990 and prohibits discrimination against people with disabilities in education and employment, their interactions with government and private businesses, and other areas of public life.

For businesses open to the public, the act requires them to:

• Remove existing barriers where it is relatively easy to accomplish without great expense;

• Make “reasonable modifications” to accommodate customers with disabilities; and

• Take steps to communicate with customers with hearing, vision and speech disabilities.

The act covers hotels, stores, restaurants, entertainment venues and most other public accommodations.

Source: The ADA National Network