Outside the movies, people who do bad things rarely see themselves as bad people. The gleeful serial killer, Heath Ledger's Joker, or the mustache-twirling villain are cinematic. Real people, in my experience, tend either to avoid reflection about their bad behavior, or to construct elaborate justifications about how their behavior is decent, acceptable, or even noble.
In the last category, take, for instance, Thomas Mundy and his fellow thuggish litigants.
Mundy, and people like him, make their living suing small business for alleged noncompliance with the Americans with Disabilities Act and its California analogue statutes. It's lucrative:
Divorced and jobless except for the self-assigned ADA work, Mundy won't say how much he has earned by filing lawsuits demanding five-figure sums then settling out of court with business owners keen to escape a costlier defense. Attorneys representing those he has sued estimate Mundy's proceeds at about $300,000 in little more than a year, and a similar sum for his attorney, Morse Mehrban, from Mundy's cases alone.
Nice work, if you can get it. And how, you might ask, can he get it? Has Thomas Mundy tried to use a courthouse, a hospital, a library, a grocery and been unable to enter because of steep steps and no ramp?
Well, not exactly. The ADA, and the regulations promulgated under it, are a hellishly complex thicket of requirements governing nearly every aspect of designing, building, stocking, and running anything that can be construed as a public accommodation. Pay a lot of money to experts and lawyers, and you might be in compliance. Otherwise, good luck — people like Mundy are on the prowl, looking to make money off of you:
Mundy is trolling for barriers to his patronage — a threshold too high for his wheelchair, a parking lot with blue-striped access lanes narrower than eight feet, a public restroom where the coat hook on the back of the door, if there is one, is above his reach.
"He might as well have had a gun and asked me for $1,000 when he came in," Paul Venetos, owner of Anaheim's Varsity Burgers, said of an April visit by Mundy that led to a lawsuit over a condiments counter that was half an inch too high.
The burger joint's security camera recorded Mundy wheeling in, looking around for a few minutes then leaving without perusing a menu or attempting to order, Venetos said. He believes Mundy came in only to look for a chink in his ADA armor.
Some Californians have made a cottage industry out of casting about for violations and then suing. And of course attorneys are only too willing to help:
"Confined to a wheelchair in California?" [Morse] Mehrban asks potential clients on his website, www.mehrban.com. "You may be entitled to $1,000 each time you can't use something at a business because of your disability."
If someone in a wheelchair has been doing laundry once a month for a year at a laundromat where the paper-towel dispenser is too high, "you're entitled to $12,000," the lawyer advertises.
Now, you might ask, wouldn't any decent jury see this for the contemptible shakedown that it is, and reject it? Well, yes, frequently:
While Mundy and Mehrban have racked up out-of-court settlements in all but a few cases, they lost one in mid-December.
A lawyer for a Garden Grove Del Taco franchise — one of a handful of Del Taco outlets Mundy has sued — cast him before a jury as an abuser of laws intended to help the disabled.
"The first thing he said wasn't even about Del Taco, it was about how 'Mr. Mundy can afford a Rolex watch,' and then he went after the number of lawsuits and the money I've made in settlements," Mundy said, apparently baffled at the portrayal of his work as something other than noble. "I wasn't able to talk hardly at all about all the good things I've done."
Here's the problem — that Del Taco franchisee just spent in legal fees somewhere between the cost of a sports car and the cost of a modest house to win that case. And though he'll recover costs — copies, deposition transcripts, witness fees, and the like — in our system he's not getting those legal fees back, even though he won the case. To do so, he'd have to sue Mundy and Mehrban for malicious prosecution, and win under a very difficult standard. So he's achieved a moral and legal victory, and a financial defeat.
That's what allows the litigation thugs of the world — like Mundy — to make upwards of three hundred large a year. It's also why it doesn't particularly matter if that counter was actually a half-inch low, or if that paper towel dispenser was a little too high. It only matters that there are people like Mundy willing to wheel around and sue, and people like Mehrban willing to help them do it. If someone sues one of my clients for one or five or ten or fifteen grand, I'll tell them to settle — even if the case is bogus, rent-seeking, and malicious. I'll explain to them that right is right, and justice is justice, but money is money — and there's no way that they are going to win the case for anything less than a large multiple of the money the plaintiff is demanding, and no realistic prospect of ever getting those costs back. Our broken system allows people like Mundy and Mehrban to feed at the trough of that strategic inequity. In a more just system — in which Mundy and Mehrban had to pay defense fees upon a loss, or get strung up by the testicles, or something — this would not be a problem.
This is the consequence of enacting a regime of accessibility regulations, then leaving enforcement of that regime to profit-seekers in a hopelessly flawed legal system. The result is arbitrary and capricious — people pay to settle cases not based on an evaluation of their merits, but on an evaluation of the cost of the fight. Moreover, this system does not select the worst offenders — the businesses least accessible to the disabled, with the most violations, or the most egregious violations. The choice of targets is not systematic at all. Rather, this system targets — and imposes costs upon — whatever small businesses people like Mundy choose. And people like Mundy and Mehrban frequently choose targets most likely to settle quickly — the poor, the foreign-born, people with limited command of English, people without the funds, support, or knowledge to fight.
If we were serious about a principled program of requiring public accommodations to offer access to the disabled, we would enforce it through a government agency. There's little to love about another government bureaucracy. But if we are going to go down this path of requiring accessibility, it's unconscionable to do so through a legal system that rewards the likes of Thomas Mundy.
Last 5 posts by Ken White
- A Response To Marc: Institutions, Agendas, and the "Culture War" - January 13th, 2016
- Lawyering Is About Service, Not Self-Actualization - January 11th, 2016
- Lawsplainer: Was FAU Prof. James Tracy Fired in Violation of His First Amendment Rights? - January 7th, 2016
- Defy, Defy, Defy. - January 7th, 2016
- President Obama And The Rhetoric Of Rights - January 5th, 2016