The Daily - The Sunday Read: ‘The Man Who Filed More Than 180 Disability Lawsuits’

Episode Date: August 8, 2021

For much of America’s history, a person with a disability had few civil rights related to their disability. That began to change when, in the 1980s, a group of lawmakers started to agitate for sweeping civil rights legislation.The result of their efforts was the Americans With Disabilities Act, or A.D.A.Albert Dytch, a 71-year-old man with muscular dystrophy, has filed more than 180 A.D.A. lawsuits in California. Is it profiteering — or justice?This story was written by Lauren Markham and recorded by Audm. To hear more audio stories from publications like The New York Times, download Audm for iPhone or Android.

I'm Lauren Markham. I'm a contributor to the New York Times Magazine, and my recent story is titled The Man Who Filed More Than 180 Disability Lawsuits. It's interesting because you could also think of it as the man who has been unable to access a restaurant, or a bathroom, or a movie seat, or a parking spot, or a checkout counter 180 times. The man's name is Albert Deitch. He's 71, and when he was in his 30s, he was diagnosed with muscular dystrophy. Over the decades, his mobility has been decreasing, and so now he frequently finds himself in public, unable to access the services and do the everyday things that he used to do.

Sometimes, when he encounters one of these barriers, he decides to sue. There's a lot of tension around these lawsuits where people with disabilities sue businesses for violating the Americans with Disabilities Act. There's even a narrative out there that people who file a lot of these lawsuits are bad actors, professional plaintiffs, grifters. Sometimes, in rare instances, a favorite restaurant or shop might even close because of one of these lawsuits. And this can really amp up the controversy. But the interesting thing is that this is how the ADA was designed to work. The only way to enforce the guidelines in this enormous and momentous piece of civil rights legislation is through these lawsuits. And this is something I really

can't stop thinking about after writing this piece. So here's my story about Albert Deitch and his 180 lawsuits, read by Anne-Marie Guérin-DeWilson. This was recorded by Autumn. Autumn is an app you can download to listen to lots of audio stories from publications such as The New York Times,

The New Yorker, Vanity Fair, and The Atlantic. Dan V. Vu was out on the floor of her restaurant one chilly evening in December 2019 when a staff member called her to the hostess station to assist an angry customer. A man in a wheelchair who, along with his wife,

had been stuck outside. The couple said that they had tried the accessible entrance through a courtyard, but found the gate locked, which had left the man shivering out in the cold while his wife circled back to a non-accessible entrance at the front of the restaurant for help opening the gate. Vu apologized profusely and looked up their reservation. It showed that they had requested an accessible table, but Vu's staff was still getting used to a new reservation system and hadn't seen the note. All the accessible spots were occupied.

Vu apologized again and ushered the couple to the hallway to wait. Soon she sat them at the accessible part of the bar. The couple ate and left. Vu's restaurant, Top Hatter's Kitchen and Bar, had been open in San Leandro, California for eight months. As a child, Vu used to cook for her family, who resettled to Southern California as refugees from Vietnam, and for a series of boarders who lived with them. A self-taught chef, she ran a food truck for six years after moving to the Bay Area, but the work was taxing. Vu once posted on Instagram,

our tired truck broke down so often, one year we were invited to our repair shop's company holiday party. She dreamed of opening a real brick and mortar restaurant. For three years, she saved up and applied for loans until she could afford it. By the time that happened, Vu was 40. She had lived in San Leandro, a town of nearly 90,000 people that is both more diverse and more affordable than nearby San Francisco and Oakland, for roughly a decade. Vu was determined to open a contemporary yet affordable restaurant that welcomed everyone. yet affordable restaurant that welcomed everyone.

In the style of California cuisine, Top Hatters incorporated a variety of influences. Her Vietnamese heritage, her husband and co-owner Matthew Beaver's Italian background. Less than a mile from their home, she found an old milliner shop, hence the restaurant's name, and started construction on a hip, open floor plan restaurant that wrapped around the courtyard with the accessible entrance.

All our savings and dreams and hopes went into it, Vu told me. In the spring of 2019, Top Hatters opened to admiring local reviews, and Vu seemed to be on her way. It was when she was assisting the frustrated guest in a wheelchair that she suddenly recalled something she had been told when the restaurant was being designed. That they had to follow the rules, down to the smallest detail, when it came to the Americans with Disabilities Act. smallest detail when it came to the Americans with Disabilities Act. In recent years, litigation against businesses accused of violating the ADA has risen sharply, as disabled people demand

compliance with a law that has been in effect for 31 years. But some see the cases, many from people who make a practice of routinely filing suits, as a ploy for cash. Vu recalls being told that some people sued businesses to make a living. Three months later, as Top Hatters was getting ready to celebrate its first birthday, Alameda County issued a shelter-in-place order as a result of COVID-19. Vu had to lay off 20 of her 25 employees. To keep the restaurant from going under, she dipped into savings. She also successfully applied for a Paycheck Protection Program loan and qualified for mortgage deferment. Then, in May, Vu and

Beavers were served with papers. Someone was suing the restaurant for violations of the Americans with Disabilities Act. Vu's instinct had been right. The customer filing the suit was the one from that December, Albert Deitch, a 71-year-old man with muscular dystrophy who has filed more than 180 ADA lawsuits in California. With the support of a prolific lawyer named Tanya Moore, Deitch has sued restaurants, movie theaters, shops, and educational institutions. The complaint against Top Patters noted the difficulty Deitch faced getting into the restaurant.

Had Plaintiff been alone, he would have been unable to alert anyone that he was trying to get in. It also claimed that the counter where he was eventually seated wasn't at a wheelchair-accessible level. Plaintiff had to reach upwards to reach his drink and food, and that there was limited clearance behind him. Someone bumped into his wheelchair, which jostled him as he was eating, it read. Deitch was suing Top Hatters for $75,000. To Vu, the lawsuit came as a shock. $75,000 seemed like a tremendous amount to compensate for Deitch's experience.

On the other hand, if Deitch didn't have a disability, he wouldn't have faced these barriers. Barriers that were not just unpleasant, but also, if verified, in violation of federal law. Was Deitch's lawsuit merely a money-making venture? Or was it a necessary demand for justice? In the United States, people with disabilities are among the poorest, least employed, and least educated of all minorities, Leonard J. Davis, a scholar of disability studies, has written.

They face discrimination in education and employment, difficulty accessing services like transportation and housing, and the high costs associated with being disabled in a society that has been built for people without disabilities and offers a limited social safety net. Queer people and people of color with disabilities face even more discrimination than their white, straight counterparts. For much of our nation's history, a person with a disability in the United States had few civil rights related to the disability at all. had few civil rights related to the disability at all. Then, in the 1980s, a bipartisan group of lawmakers,

many of whom had close family members with disabilities or were themselves disabled, began agitating for sweeping civil rights legislation, similar to the Civil Rights Act of 1964, on behalf of people with disabilities. In Congress, skeptics argued that newly specified rights for the disabled would threaten businesses expected to shoulder the costs of making spaces accessible. Blank check for the disabled? Ran a 1989 editorial headline in the New York Times. But proponents said it would be an economic boon that would move disabled people off social welfare programs

and into jobs, into restaurants, into shopping centers, and into community activities. As the legislators seeking a law wrote in a formal letter to colleagues, disabled people organized mass grassroots protests, helping galvanize a pan-disability movement that linked populations who previously considered themselves entirely distinct, veterans who had lost limbs at war, along with the deaf, for example, in a common cause. The Americans with Disabilities Act was signed in 1990 by President George H.W. Bush. Title III of the ADA decreed that all businesses open to the public were required to be accessible

and to make reasonable modifications to that end. In response to right-wing resistance to expanded governmental reach, those who fought for the ADA's passage decided against setting up a federal office to monitor or enforce it, the way the Drug Enforcement Administration enforces narcotics laws and Immigration and Customs Enforcement pursues immigration violations. Instead, lawmakers concluded that ADA enforcement should happen through the courts, essentially transferring the role of enforcement

from the government to individual disabled people and the judges who heard their cases. As soon as the bill became law, lawsuits began. A majority of early cases were filed under Title I, related to employment discrimination against those with disabilities. The 1993 movie Philadelphia, starring Tom Hanks, was the story of a lawyer who sued his firm under the ADA after being fired for having HIV. And Title II,

under which government offices could be sued for unequal access. Soon, though, plaintiffs also began to file Title III cases, those related to physical barriers against ice cream parlors, rental car companies, movie theaters, hotels, private universities, and the like. Many won. The ADA was fulfilling its promise of opening access for, and reducing discriminatory practices against, the disabled.

Worried about offering a financial incentive to sue under the ADA, lawmakers wrote the law in a way that limits plaintiffs' ability to collect monetary damages. A successful ADA suit generally ends in injunctive relief, a court's forcing the violation to be fixed, and the plaintiff's legal fees being paid in full by the defendant. A plaintiff can sometimes collect damages if he suffered bodily harm as a result of the access barriers, but this is rare. Still, there was, and still is, money to be gained in these suits. The fact that the law requires defendants to cover legal fees can encourage lawyers to sue, and even, critics claim, to drag the cases on for months or years.

In fact, the $75,000 for which Deitch was suing Taupaters was an estimate of the legal and expert consultancy fees that would be required in his case. That amount was the minimum demand needed to get the case into federal court. Even if a defendant agrees to fix the problems immediately, these cases can require months of legal procedure, expert investigations and mediation sessions, which ratchet up the bill. While a number of Title III ADA cases were filed in the 1990s, lawsuits increased in the 2000s and rose even more in the 2010s. Word had gotten around that filing Title III ADA cases

could help people with disabilities accelerate long-overdue improvements in access. There was another big factor, too. Many states had codified their own versions of the ADA, and some of those laws, including in California, Florida, Pennsylvania, Illinois, and New York, did allow for financial damages. That meant a lawsuit invoking both the ADA and one of these state laws could result in money for a plaintiff. In 2012, plaintiffs filed 2,495 Title III cases in federal court. By 2017, that had more than tripled to 7,663 cases, more than half of which were filed in California or Florida,

whose state laws can be particularly beneficial to ADA plaintiffs. California is an especially popular place for ADA lawsuits because its separate state law, called the UNRWA Civil Rights Act, allows for damages of up to $4,000 each time a plaintiff encounters an accessibility barrier, meaning that a plaintiff can visit an establishment several times, encounter the same barrier, and state a claim for each visit. related cases in California, including the one Deitch filed against Hopatter's, cite violations under both the ADA and the state's UNRWA Act in a single bundled lawsuit in federal court. Of course, most cases settle, with a defendant typically agreeing to fix the violations that the lawsuit surfaced and pay back the plaintiff's legal fees, generally in the thousands of dollars. In states that allow damages under their disability laws,

a plaintiff can also be financially compensated through that process. A paraplegic man named Samuel Love is known throughout California for filing hundreds of claims, mostly about noncompliant parking at businesses such as gas stations and hotels, violations he is able to find without even leaving his car. In March 2020, Love sued a San Jose store owner named Dong Nguyen in federal court in the Northern District of California, claiming that he failed to provide wheelchair-accessible sales counters.

A judge dismissed the lawsuit after Love missed a deadline for filing paperwork. They are not customers, Nguyen told me, of serial litigants like Love. They go around looking for something and sue. Love's ADA lawyer, Dennis Price, noted that his clients very frequently patronize the businesses they sue and are customers by any reasonable metric. Price works at the Center for Disability Access, a prolific source of ADA suits. Though its name might suggest a nonprofit operation, the Center for Disability Access is in fact

a wing of a private law firm called Potter Handy. The firm files thousands of cases each year, many with repeat plaintiffs, including Love. Another client of Price's, a lawyer named Scott Johnson, who is quadriplegic, is perhaps the most infamous of serial litigants. This is partly because of the volume of his cases. On occasion, he has filed more than a dozen lawsuits in a single day. And partly because he has himself encountered legal trouble,

including a federal indictment for failing to pay taxes on hundreds of thousands of dollars he has earned in recent years from ADA settlements. Johnson pleaded not guilty. His lawyer in that case, Malcolm Siegel, contends that Johnson's settlement money was tax-exempt, and the case is awaiting trial. Johnson's former paralegals have said that he used to instruct them to drive around town looking for violations so Johnson could file suit.

At times, paralegals said, he would accompany them, but rarely leave the car. said, he would accompany them, but rarely leave the car. Price said Johnson was always present when potential violations were identified. In any given year, Johnson files 300 to 400 lawsuits in California. He has filed thousands over the course of his career. A handful of businesses closed for good following lawsuits. A hamburger joint, a deli, a beloved pool hall. As for Scott Johnson, he got nothing from me but a closed business. Mike Murphy, the owner of the shuttered, jointed Q Pool Hall, told me,

the heartbreaking part of this is that it's a staple in the community. It's a historic place, and that's gone because of this lawsuit. Price noted that a business's closure after a lawsuit does not imply causation. He said that he and his colleagues see their clients as helping to enforce an important law. These are testers, Price told me. They are making sure that California is compliant. They are putting themselves and their time on the line for access. In 2007, in response to a lawsuit claiming vexatious disability litigation, the United States Court of Appeals for the Ninth Circuit issued an opinion making a similar point.

For the ADA to yield its promise of equal access for the disabled, it may indeed be necessary and desirable for committed individuals to bring serial litigation advancing the time when public accommodations will be compliant

with the ADA. Once Deitch sued Top Hatters, Vu thought it might be over for the restaurant. But she rallied, taking out a loan with a double-digit interest rate, while also borrowing from relatives to keep the business afloat and pay a lawyer. She did some research on Deitch and learned that he was a serial filer. He did this for a living, she concluded. She was committed to her restaurants being accessible to all guests, she said. But to her eye, Deitch's lawsuit was a ploy for cash.

The timing, during a catastrophic pandemic, didn't help. On some nights, Vu had only six orders, but she needed roughly 50 to break even. We basically kept it open and running so that our workers would have a job, she told me. In spite of the generosity she felt from a band of customers who stayed loyal to the restaurant, one even donated $200 from his stimulus check to Top Hatters, she was sinking deeper into debt and growing misanthropic. For a while there, she told me, I just looked at everyone like, you're going to sue me, you're out to get me, you know?

everyone like, you're going to sue me, you're out to get me, you know? In many accessibility lawsuits, ADA inspectors are hired to take a look at properties and see where they fall short. According to Candice Liu, an inspector who visited Top Hatters, the counter that Deitch had complained about was, in fact, compliant. Liu recommended a few other changes, however, to ensure accessibility. Moving a chair and cabinet from the bathroom, using stickers to indicate which tables were accessible, installing a locking mechanism to keep the gate from accidentally closing during business hours. Deitch said, I don't believe the list of recommended changes adequately represents

the situation, but confidentiality constrains me from providing a fuller account. To an extent, Vu felt vindicated. But my lawyer said it's cheaper and faster to just settle and do what they say than fight it, she told me. In September 2020, the parties settled. Top hatters would pay a certain sum and fix the issues that the inspector had found. The terms of the settlement prevent both parties from disclosing the amount.

It was less than the initial 75,000 Deitch demanded, but large enough that Vu recalls thinking, well, there goes our tuition money. Her son was heading to college. Afterward, she alerted every small business owner she knew to hire a consultant to be sure of compliance. I was like a walking PSA, she told me. Everywhere I went, I said, do you know about this?

You have to be careful or this could happen to you. She wanted to make sure that everyone had fully accessible, non-discriminatory businesses, and that they fixed any barriers before they were served with papers. I wanted to meet Albert Theitsch to hear his side of things, so I wrote him a note. He expressed some hesitation. Most media coverage has been slanted against plaintiffs like me. He sent me a link to a website he recently created. The civil rights of those with disabilities are violated every time they're denied the same benefits and privileges as the able-bodied. The homepage reads, every time they're denied the same benefits and privileges as the able-bodied.

The homepage reads, Yet relatively few have the time, energy, courage, and fortitude to insist that these rights are honored and protected in accordance with the law. I invite you to view the situation from the vantage point of someone in a wheelchair. To the extent that serial litigation over the ADA has received attention, mostly in local papers and on television, it's common for litigants like Deitch to be cast as enemies of the small business. In a 2020 law review article, the lawyer Evelyn Clark wrote, Media outlets often tell the stories of greedy individuals

targeting unassuming small business owners who were unaware of the ADA and their noncompliance, despite the law having been in effect since 1990. Clark, who is disabled, points to a segment of a 2010 episode of This American Life entitled Crybabies, a rare instance of ADA lawsuits receiving national attention, in which a reporter follows a serial ADA litigant around in an attempt to call him on his bluff.

In California, a kind of crybaby cottage industry has popped up around, of all things, the Americans with Disabilities Act. Ira Glass, the host of the show, said, To Clark's eye, this kind of coverage distorts the main issue, which is that people with disabilities continue to face significant barriers in getting through their daily lives. She told me that the existing media coverage has been so bad and, to be fair, the lawsuit's so copious that people see a person in a wheelchair come into their restaurant and think they're going to get sued. Disabilities, Kim E. Nielsen writes in

A Disability History of the United States, rub up against the American value of individualistic, self-sufficient grit. People with disabilities are thus often cast as a drain. Serial litigants like Deitch are read as scammers trying to turn a profit. To be continued... Eventually, Deitch agreed to meet in his backyard in the hope of offering a different perspective. He lives with his wife, Andrea, in a sweet one-story cottage in a tree-lined residential neighborhood of Oakland. They had left the front door open for my arrival, and when I walked in, Andrea was readying Deitch to head outside into the chilly spring afternoon, helping him pull his jacket over his arms and draping a blanket across his legs. Deitch wore wire-rimmed glasses and a baseball cap over a thinning head of hair. He greeted me warmly and invited me to follow him outside.

Under the shade of his backyard pine, Deitch told me that in 2008, he attended a muscular dystrophy support group where an ADA plaintiff's lawyer named Tom Stewart made a presentation about disability rights. Stewart also talked about the possibility of seeking legal relief, and Deitch signed up to speak with him. In 2009, he filed his first case. It set in motion what has become almost a second career for Deitch, one that, like most jobs, requires time, comes with a fair dose of stress, and offers financial compensation. Deitch later started working with Moore.

While exact amounts are confidential, Deitch told me that in any case that settles, his share has typically been $4,000 or less, and in some cases he has ended up with no financial compensation at all. Early on, he began to feel that filing these cases helped him find the agency he had lost as his illness progressed. The more limited his mobility became, the more of the world had become closed to him. Restaurants and shops he once frequented and enjoyed were no longer places he could go with ease or at all. He felt he was fighting not just against the difficulties, barriers, and humiliations he routinely faces as a disabled person trying to go about his life, but on behalf of a larger community. The work wasn't easy, though,

and his adversarial nature could feel painful. It's like being a parking meter person, he said. They don't thank you. From his perspective, it's not his lawyer who is drawing out the cases, but rather the businesses. If businesses truly wanted to be accessible, they would fix the barriers and settle cases as soon as possible, keeping costs lower for everyone. Though even this strategy can cost defendants tens of thousands of dollars in settlement and legal fees, as it had for Top Hatters, and more if there is significant remediation needed to fix accessibility barriers. Deitch's complaint against Top Hatters explained that he and his wife had gone there to celebrate his birthday. He had made the reservation with a specific accessibility request, and it simply wasn't met. It was frustrating and demoralizing, Deitch explained to me, to have to ask for special help to get inside. When I asked if he could recall any other details about the evening, he said he couldn't. I also asked Deitch about another restaurant he had recently sued.

I think there was an issue with the bathroom, he said. He stared at the table for a moment, trying to remember. And there was a problem with the seating. In a Google search, I was served an ad by an ADA defense lawyer named Rick Morin. Albert Deitch lawsuit, the ad read. We provide strong and effective representation to help you take a stand. Call now. Deitch is a marriage and family therapist, and if potential clients search for his name and see Morin's ad, it could impact his business. Morin, in Deitch's eye, is using his name to profit from ADA lawsuits. Morin wrote in an email, these mom and pop businesses cannot defend themselves on their own. Deitch told me he created his own website to have somewhere to send people inquiring

about the lawsuits and to create a platform for his perspective. I asked Deitch why, if accessibility is the purpose, he brings lawsuits instead of just writing a letter to a business asking for a fix. The simple answer, he said, is that asking doesn't work. He has tried again and again, only to go back to a business and see the same barriers in place. The fact is, the ADA functions because it presents a legal threat. Most businesses will pay thousands of dollars to fix their bathrooms or install wheelchair ramps, not because it's the right thing to do,

but because they could be sued for many thousands of dollars more for not having done it. This is a law that exists in the heavens, Davis, the scholar of disability studies, told me. It doesn't work unless you bring a lawsuit. At the same time, Deitch told me plainly, if there weren't some money involved, I probably wouldn't do it. It takes a good deal of his time to bring such suits, not to mention the stress and public exposure of the work. Right before we went outside,

Deitch asked his wife to grab a piece of paper he had left on the printer. Now he took it from his coat pocket and slid it across the table to me. Disability out-of-pocket expenses, the typewritten document was titled. He had listed estimated costs for a disabled person's basic needs. One-time expenses included $10,000 for an overhead lift system and $4,000 for an adjustable bed. A wheelchair-accessible van set him back $65,000. Deitch is on his second. And a power wheelchair cost $25,000. He's on his third. Only $10,000 of this was covered by insurance. Then there are the annual costs. As Deitch's mobility worsened, it became more difficult for his wife to provide adequate care, which put a strain on their relationship. I want to be your wife, not your

caretaker, she told him. This was hard to hear, but he knew she was right, so they hired outside help. Now they spend $55,000 for a daytime caregiver. He expects to have to hire a nighttime caregiver soon as well, because he has been needing to get up more often at night. That could cost another $45,000. Living in this world as a disabled person is costly, emotionally, physically, and financially. The law is subsidizing me to correct things, he told me. Then I earn money to defray the exorbitant costs of being disabled. Viewed this way, the United States government is not only outsourcing the enforcement of its law to individuals like Deitch,

it is also outsourcing the cost of social supports for the disabled to businesses. The Americans with Disabilities Act wasn't set up to defray the cost of being disabled, though, but to simply ensure access. Before I left, Deitch led me inside and gave me a tour of his house. In his bedroom, a metal crossbeam was bolted into the ceiling. A hook fastened to the beam could slide from side to side. This was part of the overhead lift system mentioned on the paper he showed me. I sit in this harness here, he explained, picking up a set of cloth straps from where they lay on the mattress.

And then this hook attaches to it and helps lift me in and out of bed. They had installed these beams in the bathroom too, so he could be lifted onto the toilet and into the shower. The fixtures have made a huge positive impact on his mobility and on his wife and caretaker, but they weren't cheap. Deitch told me the pandemic has made him a little hesitant to sue, as he knows businesses are struggling. While he filed several cases, like the one against Top Hatters, for visits he made before government-ordered shutdowns started in March 2020, he hasn't filed any based on visits he made after that time,

his slowest pace since his first lawsuit in 2009. I have to wrestle with my conscience and my wife, he said. Andrea, he explained, has grown more hesitant about lawsuits. She is a compassionate and sympathetic person by nature and is conflicted about them. I wish a compassionate and sympathetic person by nature, and is conflicted about them. I wish that the burden of enforcement did not fall on the disabled themselves, Andrea wrote to me later. Yet the help Albert has gotten through settlements has made it possible for us to afford some of the care he needs. Deitch doesn't want businesses to suffer, but he also wants to fight for proper access. The question he now has to ask himself, he told me, is what is the right thing to do

under these circumstances that causes the greatest good? The reason defendants are generally willing to settle ADA lawsuits is that there are, in fact, widespread violations of the law. The ADA includes standards for accessible design, over 279 pages, on specifics including the grade of a ramp, the width of a parking space, the length of a toilet stall grab bar, and the height of a mirror. While some of these details might appear insignificant to a person without a disability, they are there for good reason. A matter of inches with a mirror might seem minor to some of us, Davis said.

But for a person of small stature, it means the difference between being able to use the mirror and not. Most business owners are not aware of these details. In fact, proprietors of businesses that are sued might have believed they were in compliance, having received sign-off by local building inspectors who may or may not be well-versed in ADA guidelines, until the lawsuit makes evident they were not. and ADA guidelines, until the lawsuit makes evident they were not. If a plaintiff wins a lawsuit, the defendant will be compelled to make readily achievable accommodations, any changes to make their building accessible that don't come with tremendous cost or effort. Putting in a ramp,

for instance, is a readily achievable accommodation. But rebuilding an old elevator shaft so a person in a wheelchair can ride between floors is not, even though the ADA standards call for wheelchair accessible design. Ta Patters has survived, but Vu is still crawling her way out of debt. The restaurant has a lot of outdoor tables these days, and she wonders how to ensure that she's complying with accessibility requirements in that context. For instance, if a heat lamp is blocking one of the paths to a table because a customer requested it, can Vu just return it to its regular spot if someone who uses a wheelchair comes in, or should it not block the path in the first place?

I really want things to be comfortable for all our guests, and sometimes it's hard to know what the rules really are, she said. Though Deitch stopped suing while the pandemic kept people homebound and businesses closed, others have not. From March to December 2020, Scott Johnson filed 303 complaints in the Northern District of California. In the same period, Samuel Love filed 56 cases in that district. Both continued strong into 2021, often filing multiple cases a day. cases a day. Lately, Love has been filing cases against hotels that he claims have failed to adequately describe the details of their ADA accessibility measures on their websites.

These lawsuits are part of a genre of ADA case that is well-suited to the pandemic, because they can be filed without a plaintiff's ever leaving home. Guidance from the United States Justice Department deals with accessibility in online reservations systems, but there have been disputes over how to interpret it. Philip H. Stillman, a lawyer hired by Marriott International and a consortium of independent hotels to defend them against such lawsuits, contends that the guidance requires

online reservations systems only to list accessibility features in broad terms, specifying that a room is ADA compliant should be enough. Price, the Potter Handy lawyer, argues that the guidance is vague and its implications unclear. Again, my clients, they are advocates, he told me. The suits he brings, Price emphasizes, are often intended to open up more accessibility in the future. His firm once helped plaintiffs bring suit against several car dealerships for failing to provide hand controls to allow people with mobility impairments to test

drive their cars. In 2017, the Ninth Circuit ruled in favor of the plaintiffs, concluding that offering hand controls was a reasonable modification under the ADA. Because of this legal precedent, dealerships began keeping such technology on hand, meaning people with physical mobility challenges are able to test drive cars more easily in California as a direct result of these suits. Price is hoping the same will be true of hotel websites in the future. I visited San Francisco's Handlery Union Square Hotel, which had been included in the recent flurry of lawsuits regarding website listings. John Handlery, whose grandfather started the business in 1928, now owns it with his children. He met me in the parking garage and led me through the empty hotel.

The Handlery closed and laid off nearly all its staff in April 2020 because of the pandemic, and reopened only recently. Handlery emphasized to me how badly he wants to do right by disabled people. They are customers, after all, and keeping any customer happy is good business. The hotel has been sued four other times for various disability violations, and never by anyone who has actually stayed there. At this point, he sees these lawsuits as a cost of doing business. And he knows that, even if he believes the case is frivolous, it's better to just quickly settle the case than to rack up legal fees trying to fight it and risk losing big.

But the hit is extra hard in an industry that has been eviscerated in the past year. So far, none of the hotel lawsuits have been decided in favor of the plaintiff, but a vast majority are still pending. In June, the case against the handlery was dismissed by a federal judge. Stillman, who represented the hotel, is among those who believe lawyers bringing these suits are after money, not justice. Think about it, he tells me.

You file the same exact complaint 200 times, and each one you're seeking attorney's fees of $25,000. Even if the 200 suits settle for, say, 5,000 each, Stillman says, that's a lot of money for doing nothing. The trouble with accessibility litigation is that the discussion always seems to boil down to money. Frequently left out is the role of the government. If the federal government truly prioritizes disabled people's needs,

defendants and lawyers told me, perhaps it should help offset the costs for small businesses to improve their accessibility. At the very least, they said, city and county building inspectors should be better versed in the ADA and ensure compliance upon inspection, thereby taking some of the burden off the disabled to act as enforcers. But what to do about truly vexatious litigation, if it's even possible to parse the genuine from the frivolous?

When there is lawyer profit to be made from these cases, as the law professor Elia Garrido-Hall wrote in a 2016 article in the Cornell Journal of Law and Public Policy, money is diverted away from the real need, correcting the underlying violation that justified the lawsuit and providing the disabled plaintiff with equality and accessibility. Defense lawyers I talked with spoke of the need for a curing period, a set amount of time after a case is filed during which a defendant can fix any problems, thus ending the lawsuit.

The lawyer, Evelyn Clark, is in favor of a curing period, pointing out that lawsuits can last months or even years before a barrier is remedied, and that this would significantly speed things up. Many disability rights activists, however, oppose curing periods. Davis believes they would disincentivize businesses from doing anything about a known violation unless a lawsuit is filed. Another option, he suggests, is for bar associations to sanction lawyers who have

been found to file frivolous suits. Repeat litigants could be subject to some kind of judicial review. There could also be more oversight of the fees that plaintiffs' lawyers charge defendants after a successful case to ensure they are not excessive. In the United States, one in four people lives with some form of disability. Around the world, one billion people do. For now, that is. When the House version of the ADA was introduced, Major Owens of New York said, when you think about it, our entire country is made up of disabled people and temporarily able-bodied people. The people we are protecting are not a mysterious distant them, but rather

ourselves. As someone who could once move around the world much more freely, As someone who could once move around the world much more freely, Deitch is less willing to swallow the indignities of being denied access than he might have otherwise been. When he created his website, he chose the hummingbird as a kind of mascot. He became enraptured with the bird after a friend traveled to Costa Rica and came home bearing photographs of all the different species she encountered. I admire hummingbirds for their intense vitality, their breathtaking beauty,

and their exquisite grace, he writes on his website. They're the only birds with the ability to fly in all directions, including backwards and sideways. Hummingbirds can go practically anywhere. In this way, he told me, they are hyper-abled. The whole world is wide open to them. I don't expect to turn into a hummingbird anytime soon, he writes. In the meantime,

I'd settle for the ability to go anywhere most able-bodied people can go, and do what most able-bodied people can do.