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Update: judge restrains frequent ADA filer

In California, U.S. District Judge Edward Rafeedie has issued an order labeling Jarek Molski of Woodland Hills a “vexatious litigant” because of patterns of abuse in his filing of hundreds of disabled-rights lawsuits against restaurants, bowling alleys, wineries and other businesses in the state (Sept. 21, Nov. 27, etc.). If upheld, the ruling would bar Molski from filing further suits without permission of a judge, who would have to be informed of Rafeedie’s order. “In three separate suits filed last year, for example, Molski, a law school graduate, claimed to have suffered identical injuries at three restaurants, all on May 20, 2003 — ‘highly unusual, to say the least,'” the judge wrote. The use of vexatious-litigant orders is considered rare; among legal professionals interviewed by the L.A. Times, Eve L. Hill, a visiting professor of law at Loyola-Los Angeles and executive director of the Western Law Center for Disability Rights, called Judge Rafeedie’s order “outrageous”, while Stanford law prof Pamela Karlan said it made “perfect sense” in that allowing misuse of the disabilities act risks generating a public backlash against it. (Henry Weinstein, “Disabled Man’s Suits Restricted”, Los Angeles Times, Dec. 11; “Lawsuit spree angers judge”, AP/Monterey County Herald, Dec. 12)(via Kemplog).

Judge Rafeedie also had harsh words for Molski’s attorney, Thomas E. Frankovich of San Francisco, saying he and his law firm had “aided and abetted” Molski’s “abusive litigation practices,” and “issuing an order that Frankovich’s firm and an organization affiliated with Molski called Disability Rights Enforcement Education Services had to come to court and show why they also should not be sanctioned.” Recently Frankovich filed five more lawsuits against businesses in the Central Coast town of Cambria, but this time the plaintiff is Nicole Moss rather than Molski. (Cynthia Neff, “New ADA lawsuits target Cambria”, San Luis Obispo Tribune, Nov. 11).

More from the Santa Maria Times:

A provision of California state law known as the Unruh Act allows Molski to demand $4,000 in damages per violation, per day.

Molski has said in the past that an average settlement is $20,000. He testified in the Los Angeles trial that he personally nets an average of $4,000 per settlement, after paying attorney’s fees, [Bakersfield attorney Craig] Beardsley said.

“There appeared to be 200 active cases ongoing at a time. You could extrapolate that out to $800,000 a year,” Beardsley said.

(Erin Carlyle, “Restaurant ready to fight lawsuit”, Santa Maria Times, Dec. 5).

Update: store’s refusal to permit display of facial jewelry not unlawful

West Springfield, Mass.: despite support for her position from the federal Equal Employment Opportunity Commission (EEOC), Kimberly Cloutier has failed to convince the First Circuit federal appeals court that she suffered unlawful religious discrimination when her employer, the Costco discount chain, fired her for refusing to remove or mask the jewelry in her various facial piercings. Cloutier said she was a member of the Church of Body Modification which ascribes religious significance to piercings. We covered the case Oct. 18-20, 2002. (decision, Cloutier v. Costco, Dec. 1) (via Michael Fox, Jottings By an Employer’s Lawyer, who comments). More: Appellate Law & Practice‘s apparently anonymous “S. COTUS” considers the original headline of this posting (“Update: facial jewelry not religiously protected”) misleading, since the circuit did not rule out religiously based protection for facial jewelry as a general matter but instead rested its decision on the grounds that “the only accommodation Cloutier considers reasonable would impose an undue hardship on Costco”. Headline accordingly fixed.

Litigation and business relocation

Should businesses making siting decisions seek out localities with a low per capita number of lawyers? Well, not really; lawyers do perform a great many functions besides filing lawsuits, and there’s far from a perfect correlation between the quantum of litigation risk in a locality and the number of attorneys in practice. The better course, if the objective is to avoid legal hassles, is to identify other indicators of a nonlitigious local business climate. That’s what I argued in a recent interview with Expansion Management magazine, said to be read by more than 45,000 site-selection executives. (Michael Keating, “Research Corner: The Cost of Litigation Comes Right Off the Bottom Line”, Oct.).

Sued for criticizing

National Law Journal covers the continuing tendency of companies to sue customers and others who post “gripe sites” complaining about their products and services (see Nov. 7 and links from there). “Currently, about a dozen gripe-site lawsuits are pending across the country.” Courts have been unfriendly to such suits, but some companies continue to pursue them, leading critics to suspect that they’re aimed at punishing the critics. (Tresa Baldas, “Trademark Lawsuits: The Price of Online Griping”, Dec. 2). There’s a site called webgripesites.com that monitors the action.

Hevesi’s gift

New York Comptroller Alan Hevesi has again (see May 14) marched the state into a plaintiff’s role in securities litigation, this time against Merck, and once more he has selected as counsel a law firm that was a major contributor to his campaign. “The fees in these class-action cases are so outsized that winning the chance to represent the New York State pension fund in a case like this is like winning the lottery,” editorially observes the New York Sun. The paper “called Arthur Abbey, a partner at Abbey Gardy who wrote a $44,000 check to Mr. Hevesi’s campaign in March of 2002. Asked how his firm was chosen to represent Mr. Hevesi in the Merck case, Mr. Abbey told us, ‘I can’t tell you…It’s like how you come to get a gift. It was his decision.'” (“The Gift That Keeps on Giving” (editorial), New York Sun, Dec. 7). More: Apr. 14.

Wrapped and gift-ready

I’ve noticed that many readers buy copies of The Rule of Lawyers (and my earlier books) to give as presents to family members, friends, soon-to-be-graduates, doctors and so forth. Order for the holidays through Amazon at this link and you can choose from services such as gift wrapping and express delivery. You’ll also be supporting this site, which gets a commission on sales through our Amazon store. The store link also works (as do the commissions for us) if you’re shopping for items such as DVDs, toys, music and so forth.

A machine built for complaining

Justifying government penalties for broadcasters, Federal Communications Commission head Michael Powell cited a surge in public complaints of on-air indecency — hundreds of thousands of complaints in all. “What Powell did not reveal — apparently because he was unaware — was the source of the complaints. According to a new FCC estimate obtained by Mediaweek, nearly all indecency complaints in 2003 — 99.8 percent — were filed by the Parents Television Council, an activist group.” (Todd Shields, “Activists Dominate Content Complaints”, MediaWeek, Dec. 6; Jeff Jarvis, BuzzMachine, Dec. 7).

Self-defense in the U.K.

Mark Steyn in the Telegraph:

These days, even as he or she is being clobbered, the more thoughtful British subject is usually keeping an eye (the one that hasn’t been poked out) on potential liability. Four years ago, Shirley Best, proprietor of the Rolander Fashion emporium, whose clients include Zara Phillips, was ironing some clothes when the proverbial two youths showed up. They pressed the hot iron into her flesh, burning her badly, and then stole her watch. “I was frightened to defend myself,” said Miss Best. “I thought if I did anything I would be arrested.” There speaks the modern British crime victim….

The right to protect your family does not derive from any home secretary or chief constable.

(“An Englishman’s Home Is His Dungeon”, Dec. 7). (& letter to the editor, Mar. 15).