On September 23, 2016, an Arizona judge granted at least a temporary reprieve to more than 1,100 Arizona businesses that have been beleaguered by lawsuits alleging that their parking lots lack sufficient accessible parking spaces for the disabled, or that spaces are not marked with adequate signage. The Honorable David M. Talamante entered an order consolidating and temporarily staying all of the cases that remain pending out of more than 1,500 cases filed in Arizona this year by a single plaintiff’s counsel, Peter Strojnik, and his affiliated clients alleging violations of Title III of the Americans with Disabilities Act of 1990 (ADA) and the Arizonans with Disabilities Act (AzDA). All deadlines and other activity in the pending cases are stayed until the court orders otherwise, and the plaintiffs are barred from filing any new complaints raising substantially similar legal issues without leave of the court.
The stay was granted in connection with the state attorney general’s ongoing involvement in the flood of lawsuits filed by Strojnik and his clients—David Ritzenthaler; Advocates for American Disabled Individuals LLC; and Advocates for Individuals with Disabilities Foundation, Inc. (AID). In the last 9 months, these plaintiffs have filed more than 1,500 virtually identical lawsuits alleging minor, technical violations of the ADA and the AzDA, such as a lack of signage specifically designating an accessible parking space as van-accessible or signs that are posted a few inches too low. On August 24, 2016, the Arizona Attorney General’s Office filed a motion accusing the plaintiffs of “systemic abuse of the judicial system” and seeking to intervene in all of AID’s pending lawsuits as a limited purpose defendant in order to consolidate and pursue dismissal of all the pending actions.
In its motion to intervene, the Arizona Attorney General’s Office argued that the plaintiffs were improperly using the judicial system for their own enrichment by filing lawsuits to extort settlements from businesses that typically find it less expensive to settle than to litigate. The attorney general’s motion asserts that these tactics “run contrary to the Legislature’s expressed preference for resolving public accommodation and services complaints by means other than litigation.” The court appears willing to entertain these arguments and entered an order on September 8, 2016 permitting the attorney general to intervene in a handful of cases, and on September 23, 2016, the court entered an order consolidating more than 1,100 pending cases and staying all further proceedings, except as to the plaintiffs and the attorney general. The court set a scheduling conference for October 27, 2016 to discuss management of the cases and set a briefing schedule.
In the meantime, the plaintiff has petitioned the Arizona Court of Appeals for special action review of an earlier order that denied plaintiff’s motion to strike Judge Talamante from presiding over the cases. Judge Talamante denied the request as untimely and accused the plaintiff of “judge shopping.” The plaintiff wants the order reversed and the case reassigned to a different judge. It is also asking the Arizona Court of Appeals to void all orders entered by Judge Talamante after he denied the motion to recuse himself, which would include the orders consolidating and staying the cases. The attorney general has opposed the petition for special action review, which remains pending before the Arizona Court of Appeals.
This is just the latest setback for AID. First, the organization was the subject of several critical investigative news stories by the local Phoenix ABC affiliate, which disclosed that the State Bar of Arizona has at least two active investigations underway against Mr. Strojnik. Shortly thereafter, AID’s executive director, Jennifer Rogers, abruptly resigned, stating that her “personal ideas and goals are not in alignment with the organization.”
In 2015 and 2016, Strojnik and his son, Peter K. Strojnik, also filed 153 cases against Arizona hotels and motels alleging they did not have lifts at their spas or pools, as required by the ADA, all on behalf of one plaintiff, Theresa Brooke. Peter K. Strojnik then went on to file over 200 nearly identical cases in the Central and Southern Districts of California on behalf of the same plaintiff. More than 60 of those cases remain pending. Those cases are unaffected by Judge Talamante’s rulings in the AID cases, however, defendants in those actions may find the legal arguments and issues raised by Arizona’s attorney general to be helpful in their own defenses.
What Can Your Business Do?
This decision grants only a temporary break to Arizona businesses, which have been inundated with serial ADA public accommodation cases in 2015 and 2016. While Judge Talamante’s order could ultimately result in the dismissal of more than 1,100 cases currently pending, it will not signal the end of these kinds of lawsuits. Business owners in Arizona and other states may want to carefully assess their places of business and their services to ensure that they comply with the ADA. Compliance and avoidance are usually more cost-effective than defending these kinds of cases and help ensure the availability of your goods and services to all customers.