Robert McCarthy is a serial litigant. And the Americans With Disabilities Act is the weapon he uses to shake down his victims.
Since 2001, McCarthy has filed more than 250 lawsuits against small businesses throughout the Golden State, alleging various violations under the federal law (which, in turn, constitute violations of California’s Civil Code).
Every infraction can cost $4,000. And with McCarthy alleging multiple infractions in most of his ADA suits, his victims have considerable motivation to pay him a reduced settlement to go away.
Here’s what particularly galls about McCarthy, who shamelessly exploits the fact that he is wheelchair-bound: He’s not a California resident. He resides in an Arizona assisted-living facility.
It’s because he finds California such a target-rich environment for ADA litigation that he makes a yearly trip to our fair state to seek out fresh prey.
Except in 2004, when he was convicted on theft and child pornography charges and sent to prison for 17 months. When he was released in 2005, he picked up where he left off, trekking to the Golden State and filing a plethora of ADA lawsuits.
Professional plaintiffs like McCarthy are the reason California accounts for a whopping 40 percent of the nation’s ADA lawsuits (though the state makes up only 12 percent of the U.S. population).
He is following in the wheelchair tracks of John Carpenter, a convicted child molester, who filed nearly 1,000 ADA lawsuits in Los Angeles County before committing suicide last year, and Alfredo Garcia, a convicted felon who has more than 800 ADA lawsuits, before he was deported back to Mexico.
This plague upon the state’s civil justice system has risen to such a level that it can no longer be ignored by lawmakers in Sacramento. Indeed, just this week, both the Assembly and Senate judiciary committees considered legislation to curb ADA lawsuit abuse.
One promising measure has been authored by state Sen. Cathleen Galgiani, whose constituency includes business owners in California’s Central Valley shaken down by McCarthy. It would reduce the perverse profit incentive for plaintiffs like McCarthy, she said, in a statement, “to file frivolous lawsuits based on minor and technical deficiencies.”
No longer would the state’s small businesses be terrorized by serial litigants like McCarthy, who cite establishments for such dubious offenses as a handicap parking space in which the painted symbol has faded or a lobby that had not posted the International Symbol of Accessibility.
Of course, it remains to be seen if Sen. Galgiani’s bill – or any other ADA reform bill in the Legislature – will ultimately be enacted. Not the least because the Consumer Attorneys of California – the state’s trial lawyers association – is unconvinced that ADA litigation is excessive.
“Disability access enforcement lawsuits have resulted in improved access for physically disabled persons,” according to CACA. The group also suggests that suing small businesses for ADA violations – at $4,000 per putative infraction – has somehow “empowered disabled persons.”
Well, I was sitting on the South Lawn at the White House in 1990 when President George Hebert Walker Bush signed the ADA. And I’m convinced he wouldn’t have signed the measure – however well-intended – if he knew that in 2015 it would be used by litigants like McCarthy to shake down small businesses.
“I want to say a special word to our friends in the business community,” said President Bush. “I know there have been concerns that the ADA may be vague or costly, or may lead endlessly to litigation. But I want to reassure you right now that my administration and the United States Congress have carefully crafted this Act.”
Well obviously the law wasn’t crafted carefully enough. Because serial litigants like Robert McCarthy continue to file ADA lawsuits with impunity.
And all too many contingency-fee consumer attorneys are all too willing to represent such professional plaintiffs.