News

Federal judge orders serial ADA plaintiffs to show standing to sue in 9 cases

One litigant has made allegations against businesses in Palo Alto, Mountain View

A serial ADA litigant, Scott Johnson, is being asked to show standing by a U.S. Court judge. Johnson has sued hundreds of businesses, including Tai Pan in Palo Alto. Embarcadero Media file photo by Adam Pardee.

Acting on his own initiative, a federal judge sitting in San Francisco has ordered three disabled plaintiffs and their lawyers to prove they are entitled to bring their lawsuits in federal court, including one plaintiff with a history of lawsuits against Peninsula businesses.

Because they brought their federal claims under the Americans with Disabilities Act (ADA), the plaintiffs must have legal "standing," which requires that they genuinely expect to return to the places where they experienced discrimination.

The unusual orders require the plaintiffs and their lawyers to submit declarations under the penalty of perjury that prove they genuinely intend to return to the places that were inaccessible when they first visited.

The orders, issued by U.S. District Court Judge Vince Chhabria on Monday and Tuesday, apply to at least nine different cases in which the plaintiffs are represented by the San Diego law firm Potter Handy LLP.

The orders follow an April 11 civil lawsuit in San Francisco Superior Court jointly initiated by the district attorneys of San Francisco and Los Angeles accusing Potter Handy of filing hundreds of fraudulent lawsuits under the ADA.

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The district attorneys allege that Potter Handy was aware that their clients did not have legal "standing" to bring the cases in federal court, but the firm filed the cases anyway. The suit seeks an order that, among other things, would require the firm to repay the amounts that defendants have paid to settle the allegedly fraudulent suits over the last four years.

Two of the three disabled plaintiffs identified in the nine orders use wheelchairs for mobility. Both are frequent ADA litigators in the U.S. District Court for the Northern District of California.

The two litigants — Brian Whitaker and Scott Johnson — have been extremely active. A Bay City News analysis shows that in 2021, Whitaker filed 509 lawsuits in the district and Johnson, the plaintiff in six of the cases Chhabria has called out, more than a thousand.

Johnson is the plaintiff in hundreds of cases against local businesses in Mountain View, Palo Alto and other nearby Bay Area cities. Johnson has alleged ADA violations committed by restaurants, auto repair shops, hair salons, liquor stores and even a welding shop.

Many business owners said they could not recall Johnson, who is quadriplegic, attempting to access their business at the time of the alleged violations, and said that they were not given an opportunity to correct any of the alleged problems. Some wondered whether temporary outdoor dining arrangements — added during the COVID-19 pandemic — may have opened them up to lawsuits by being noncompliant with the ADA.

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In all of Johnson's local cases against Peninsula businesses, the lawsuits were filed by Potter Handy LLP, which specializes in ADA litigation through an arm of the company called the Center for Disability Access. Most businesses are advised not to fight the lawsuit and seek a swift settlement agreement. Johnson attracted media attention after he was indicted in May 2019 for failing to declare income from his ADA lawsuits on his federal tax return. Johnson denied that the income was taxable. His trial was postponed for over a year because of COVID-19 and is currently scheduled in January 2023.

Johnson holds the distinction of filing the most ADA cases in the district, having filed more than 2,500 cases since 2010. Over that same period, he has filed the most suits statewide, with more than 4,000 filings. While that averages to roughly a case a day every single day for 11 consecutive years, in 2021, he stepped up the pace, filing more than a thousand cases that year alone.

Johnson's filings say that he physically visited the location of almost every one of the defendants he has sued, and in each case where he did, he personally encountered barriers to accessibility. He also says that he intends to return to each of them when the barrier to accessibility is remediated.

Dennis Price, a partner at Potter Handy, defends Johnson. In an interview last month, Price said, "Mr. Johnson is somebody that the people like to kind of pick on in this area. But if you go to Sacramento, Sacramento is viewed widely as one of the most accessible places in America. And that is entirely because of Mr. Johnson ... . That's where he lives. And he aggressively pursued compliance in that area and frankly, other people with disabilities are the beneficiaries of that."

Legal standing

Each of the judge's orders note the district attorneys' lawsuit against Potter Handy, and each directs the plaintiff to "substantiate" the allegation about an intent to return to the defendant's establishment.

Potter Handy must file its own declaration that describes in detail "the investigation counsel conducted to ensure that their client visited the establishment and intends to return there."

The intention of returning has become a flashpoint in the standing discussion.

Standing is the legal term used to describe what a plaintiff must prove to show that he is entitled to litigate a claim in federal court. Without legal standing, a judge has no jurisdiction and must dismiss the case.

In order for an ADA plaintiff to have standing to seek an injunction, he or she must not only demonstrate that he or she has been injured by actions of the defendant but also that there is a real and immediate risk that he or she will suffer harm in the future if the injunction is not issued.

As a 2011 decision of the U.S. Court of Appeals for the 9th Circuit put it, a plaintiff "lacks standing if he is indifferent to returning to the store or if his alleged intent to return is not genuine."

The district attorneys' lawsuit said that in "vast numbers" of Potter Handy lawsuits, the firm "falsely alleges that ... the Serial Filer genuinely intends to return to the sued business."

The suit — a 58-page document with almost 300 pages of exhibits — alleges that Potter Handy's clients "almost never return to the businesses they sue after a settlement is reached" and the firm uses "false standing allegations to maintain their scheme of deceiving the courts and businesses they sue into believing they have federal standing."

Chhabria's orders all say that after the declarations are submitted, he will likely schedule an in-person evidentiary hearing "to test the veracity" of the declarations.

Attorney Philip Stillman is one of the most active litigators defending ADA lawsuits in California and is familiar with many of the ADA plaintiffs that Potter Handy represents. Stillman represents the defendant in one of the nine cases where Chhabria has issued orders to show cause.

Stillman thinks that Chhabria's orders are both important and unusual. He attributes them in part to the fact that independent district attorneys are making allegations against the law firm, not just the defendants in the litigation.

Price, the Potter Handy partner, issued a statement expressing concern about the motivations of the district attorneys. Price said that the district attorneys were both facing recall threats "and are filing these claims in order to generate support."

Chhabria gave the plaintiffs and their counsel 21 days to respond to the court's directives.

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Federal judge orders serial ADA plaintiffs to show standing to sue in 9 cases

One litigant has made allegations against businesses in Palo Alto, Mountain View

by Joe Dworetzky / Bay City News Foundation / Mountain View Voice

Uploaded: Sat, Apr 23, 2022, 9:02 am

Acting on his own initiative, a federal judge sitting in San Francisco has ordered three disabled plaintiffs and their lawyers to prove they are entitled to bring their lawsuits in federal court, including one plaintiff with a history of lawsuits against Peninsula businesses.

Because they brought their federal claims under the Americans with Disabilities Act (ADA), the plaintiffs must have legal "standing," which requires that they genuinely expect to return to the places where they experienced discrimination.

The unusual orders require the plaintiffs and their lawyers to submit declarations under the penalty of perjury that prove they genuinely intend to return to the places that were inaccessible when they first visited.

The orders, issued by U.S. District Court Judge Vince Chhabria on Monday and Tuesday, apply to at least nine different cases in which the plaintiffs are represented by the San Diego law firm Potter Handy LLP.

The orders follow an April 11 civil lawsuit in San Francisco Superior Court jointly initiated by the district attorneys of San Francisco and Los Angeles accusing Potter Handy of filing hundreds of fraudulent lawsuits under the ADA.

The district attorneys allege that Potter Handy was aware that their clients did not have legal "standing" to bring the cases in federal court, but the firm filed the cases anyway. The suit seeks an order that, among other things, would require the firm to repay the amounts that defendants have paid to settle the allegedly fraudulent suits over the last four years.

Two of the three disabled plaintiffs identified in the nine orders use wheelchairs for mobility. Both are frequent ADA litigators in the U.S. District Court for the Northern District of California.

The two litigants — Brian Whitaker and Scott Johnson — have been extremely active. A Bay City News analysis shows that in 2021, Whitaker filed 509 lawsuits in the district and Johnson, the plaintiff in six of the cases Chhabria has called out, more than a thousand.

Johnson is the plaintiff in hundreds of cases against local businesses in Mountain View, Palo Alto and other nearby Bay Area cities. Johnson has alleged ADA violations committed by restaurants, auto repair shops, hair salons, liquor stores and even a welding shop.

Many business owners said they could not recall Johnson, who is quadriplegic, attempting to access their business at the time of the alleged violations, and said that they were not given an opportunity to correct any of the alleged problems. Some wondered whether temporary outdoor dining arrangements — added during the COVID-19 pandemic — may have opened them up to lawsuits by being noncompliant with the ADA.

In all of Johnson's local cases against Peninsula businesses, the lawsuits were filed by Potter Handy LLP, which specializes in ADA litigation through an arm of the company called the Center for Disability Access. Most businesses are advised not to fight the lawsuit and seek a swift settlement agreement. Johnson attracted media attention after he was indicted in May 2019 for failing to declare income from his ADA lawsuits on his federal tax return. Johnson denied that the income was taxable. His trial was postponed for over a year because of COVID-19 and is currently scheduled in January 2023.

Johnson holds the distinction of filing the most ADA cases in the district, having filed more than 2,500 cases since 2010. Over that same period, he has filed the most suits statewide, with more than 4,000 filings. While that averages to roughly a case a day every single day for 11 consecutive years, in 2021, he stepped up the pace, filing more than a thousand cases that year alone.

Johnson's filings say that he physically visited the location of almost every one of the defendants he has sued, and in each case where he did, he personally encountered barriers to accessibility. He also says that he intends to return to each of them when the barrier to accessibility is remediated.

Dennis Price, a partner at Potter Handy, defends Johnson. In an interview last month, Price said, "Mr. Johnson is somebody that the people like to kind of pick on in this area. But if you go to Sacramento, Sacramento is viewed widely as one of the most accessible places in America. And that is entirely because of Mr. Johnson ... . That's where he lives. And he aggressively pursued compliance in that area and frankly, other people with disabilities are the beneficiaries of that."

Each of the judge's orders note the district attorneys' lawsuit against Potter Handy, and each directs the plaintiff to "substantiate" the allegation about an intent to return to the defendant's establishment.

Potter Handy must file its own declaration that describes in detail "the investigation counsel conducted to ensure that their client visited the establishment and intends to return there."

The intention of returning has become a flashpoint in the standing discussion.

Standing is the legal term used to describe what a plaintiff must prove to show that he is entitled to litigate a claim in federal court. Without legal standing, a judge has no jurisdiction and must dismiss the case.

In order for an ADA plaintiff to have standing to seek an injunction, he or she must not only demonstrate that he or she has been injured by actions of the defendant but also that there is a real and immediate risk that he or she will suffer harm in the future if the injunction is not issued.

As a 2011 decision of the U.S. Court of Appeals for the 9th Circuit put it, a plaintiff "lacks standing if he is indifferent to returning to the store or if his alleged intent to return is not genuine."

The district attorneys' lawsuit said that in "vast numbers" of Potter Handy lawsuits, the firm "falsely alleges that ... the Serial Filer genuinely intends to return to the sued business."

The suit — a 58-page document with almost 300 pages of exhibits — alleges that Potter Handy's clients "almost never return to the businesses they sue after a settlement is reached" and the firm uses "false standing allegations to maintain their scheme of deceiving the courts and businesses they sue into believing they have federal standing."

Chhabria's orders all say that after the declarations are submitted, he will likely schedule an in-person evidentiary hearing "to test the veracity" of the declarations.

Attorney Philip Stillman is one of the most active litigators defending ADA lawsuits in California and is familiar with many of the ADA plaintiffs that Potter Handy represents. Stillman represents the defendant in one of the nine cases where Chhabria has issued orders to show cause.

Stillman thinks that Chhabria's orders are both important and unusual. He attributes them in part to the fact that independent district attorneys are making allegations against the law firm, not just the defendants in the litigation.

Price, the Potter Handy partner, issued a statement expressing concern about the motivations of the district attorneys. Price said that the district attorneys were both facing recall threats "and are filing these claims in order to generate support."

Chhabria gave the plaintiffs and their counsel 21 days to respond to the court's directives.

Comments

MyFeelz
Registered user
Downtown North
on Apr 23, 2022 at 6:54 pm
MyFeelz, Downtown North
Registered user
on Apr 23, 2022 at 6:54 pm

Johnson's actions are completely legal. The judge making him "prove" he has standing puts his position at risk because he is also practicing discrimination against Mr. Johnson. If you went to a facility where you were crapped on, why would you ever return? I think of Johnson as the "Norma Rae" of disability rights. Go to every facility that is supposed to be ADA compliant and look at it through the eyes of a disabled person. Johnson is the eyes and ears of the spirit of ADA laws. If the facility is found to be out of compliance no one has to notify the facility that they are courting a lawsuit. They should know how to comply with laws that have been on the books for decades. It's their responsibility to be proactive, and to be aware of the laws that are supposed to allow everyone equal rights to enjoy the facility. You can't just court the able-bodied, able-brained, etc. Because if you do, you will get sued eventually. Johnson is trying to send a message to businesses. Comply or close. And that is the law. If you refuse to comply, the office of civil rights has the capacity and the DUTY to relieve you of your business license. As far as Johnson suing for damages, only a disabled person understands how much it hurts to know that you are not welcome at so many public establishments. That's real hurt, and it doesn't have a dollar figure but being awarded damages are right and just, because it's the only way to get the establishment to understand. They don't understand disabled people, and don't want to. But they sure understand the monetary damages they may have to pay after hurting a disabled person intentionally by denying them equal access to their facilities. And if it's 100 or 1000 lawsuits, that's what it takes to create real CHANGE.


Online Name
Registered user
Embarcadero Oaks/Leland
on Apr 23, 2022 at 7:33 pm
Online Name, Embarcadero Oaks/Leland
Registered user
on Apr 23, 2022 at 7:33 pm

I've been following this story and half of the time the plaintiffs never showed up at the businesses they were suing and/or made up reasons to sue like a restaurant didn't have ADA-compliant tables for outside dining when they had NO tables for dining by ANYONE, disabled or not.

Years ago I was shocked that I was almost sued at work for making a comment that a temp junped on when the comment applied to myself for being klutzy while trying to open a door while holding a huge pile of books. I had no idea the guy was missing one finger joint on his hand because he never bothered to try to stick out his hand to open the door for me,

Fortunately enough people witnessed his shakedown so HR threw out his claim,

Decades later I still fume about how my self-deprecating comment could have been used like that!


MyFeelz
Registered user
Juana Briones School
on Apr 23, 2022 at 7:49 pm
MyFeelz, Juana Briones School
Registered user
on Apr 23, 2022 at 7:49 pm

Online Name, we live in litigious times. On the other hand, the laws were written to give anyone with a disability a fair shake. Has it resulted in occasional shakedowns? Sure it has. But if the entity thought they were 100% compliant, and could prove it, they are immune to a shakedown. The complainant, conversely, has nothing to lose and everything to gain by "winning" their case. Because it results in better compliance. I'll bet even in your case though it was dismissed, it resulted in greater awareness of sensitivity toward disabilities. The thing that everybody hates about lawsuits is that it costs money to go through the court system. But this is the price of fairness, where a disabled person has standing to file a suit if they have been affected by an establishment, and both parties have to pay fees to sort it out. Best practices could avoid all of that.


Jennifer
Registered user
another community
on Apr 23, 2022 at 8:36 pm
Jennifer, another community
Registered user
on Apr 23, 2022 at 8:36 pm

If you don't know a horse, look at its track record. Anyone familiar with Johnson knows his record, and it isn't a good one.


cmarg
Registered user
Palo Alto High School
on Apr 25, 2022 at 4:53 pm
cmarg, Palo Alto High School
Registered user
on Apr 25, 2022 at 4:53 pm

Hurting people hurt others... Sad that he has to be litigious. If he feels changes need to happen, there is always a polite way to go about it and build a positive attitude toward everyone caring. He could be a positive force but appears, in my opinion, to take a vengeful approach.


Carla
Registered user
Downtown North
on Apr 25, 2022 at 7:26 pm
Carla, Downtown North
Registered user
on Apr 25, 2022 at 7:26 pm

This judge is right to require standing. It should be wrong to profit from filing lawsuits.

It is understandable if one gets hurt from others' actions or inactions, but these plaintiffs are not being hurt when what are doing is simply noting that something is not to current code. They should send that information to the respective cities for compliance, and/or make a public information or shaming system.


Anonymous
Registered user
Duveneck/St. Francis
on Apr 25, 2022 at 7:50 pm
Anonymous, Duveneck/St. Francis
Registered user
on Apr 25, 2022 at 7:50 pm

Sue, sue…it’s the California way.
Good news to have a sensible judge here.


TorreyaMan
Registered user
Palo Verde
on Apr 25, 2022 at 8:53 pm
TorreyaMan, Palo Verde
Registered user
on Apr 25, 2022 at 8:53 pm

This is simply a scam. One of the plaintiffs sued over 1000 times in ONE Year. Even if some of the visits occurred in prior years, does anyone really believe he/she visited all the establishments sued, and is doing anything more than making a huge amount of money in an extraordinary underhanded way? These are not crusades to bring about ADA compliance. These are get rich schemes.


Josie
Registered user
Charleston Meadows
on Apr 26, 2022 at 9:33 am
Josie, Charleston Meadows
Registered user
on Apr 26, 2022 at 9:33 am

Hooray for Judge Vince Chhabria! Many of these lawsuits are just an easy shakedown of local businesses, who in some cases are driven out of business. Making a buck off the backs of small business owners, just because you can, is despicable.


Avery Stone
Registered user
another community
on Apr 26, 2022 at 9:40 am
Avery Stone, another community
Registered user
on Apr 26, 2022 at 9:40 am

The question remains...is Mr. Johnson a true ADA advocate or a fleecing opportunist?

Advocacy movements are oftentimes toothless unless punative lawsuits are involved.


Observer
Registered user
Menlo Park
on May 5, 2022 at 2:37 pm
Observer, Menlo Park
Registered user
on May 5, 2022 at 2:37 pm

I hope that these serial ADA litigants are paying full federal and state income tax on all their earnings as regular income. Additionally since it seems be a business they better have paid all the required local business license fees and be following all regulations including ADA regs for their premises/place of business.


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