18-May-16 – Earlier in the year, a neighbor of Margie Milovich was hit with a lawsuit under the Americans with Disabilities Act, but it still didn’t prepare her for the moment the same plaintiff delivered a similar lawsuit to the door of her River North flower shop.

“It was a complete shock,” says Milovich (right), who has managed family-owned LaSalle Flowers for 21 years. “No one has ever had an issue purchasing flowers here.” The flower shop is around the corner from Fabcakes, a coffee shop that was sued by the same party, Chicago resident Mary Mizerk, through her attorney, John Steele of Accessibility Law Group and formerly of Prenda Law.

Prenda Law was a Chicago firm dissolved in 2013 amidst charges of deception, identity theft, misrepresentation, professional misconduct, and undertaking litigation meant just to annoy defendants.

The lawsuit against LaSalle Flowers alleges that Mizerk, who has osteoarthritis and uses a wheelchair, could not enter the flower shop on her own because the doorway was about five inches higher than the sidewalk.

Serial litigation targets small businesses, says manager of one such business

Brought under Title III of the ADA, the lawsuit against LaSalle Flowers is one of several filed by Mizerk and Steele against businesses within several blocks of each other in Chicago’s River North neighborhood.

And that fact is not lost on Milovich.

“This lawyer is targeting mom-and-pop places,” she said of Steele. “There have been 14 lawsuits [nearby] of our local shops. He’s not going after the big people, [he’s targeting] small restaurants, small salons, small neighborhood pubs.”

Many businesses and defense attorneys find issue with such “serial” or “drive-by” filings, particularly because they stem from a handful of plaintiffs and lawyers.

Of the 94 ADA Title III lawsuits filed in 2015 in United States District Court for the Northern District of Illinois, 77 were brought by only eight plaintiffs, each represented by the same legal counsel.

(Left) Everett McKinley Dirksen United States Courthouse in the Chicago Loop. Photo by Carol Highsmith.

Mizerk filed six lawsuits with Steele, but Steele also represented William Gomez, who filed eight suits in 2015, and Ollie Franklin, who filed five last year.

Another chunk of litigation was filed by repeat plaintiffs Howard Cohan, who filed 21 lawsuits, and Santiago Abreau, who filed 16, both of whom were represented by the Chicago firm of Jacobson and Tchernev.

The trend didn’t appear to change in 2016. Through March 31, 29 ADA Title III lawsuits were filed. Abreau was the plaintiff in eleven, Cohan filed ten, Mizerk filed three, and Gomez, three.

To many business owners, these numbers substantiate their belief that some litigators are out to make money, banking that most defendants will settle quickly to avoid larger fees that would come with fighting the complaint.

Plaintiff attorney says they seek compliance with law, not big payouts

Ivo Tchernev of Jacobsen and Tchernev did not reply to repeated requests for comment.

However, Steele said he and his clients aren’t just after a quick buck, pointing out that plaintiffs can’t ask for damages, only injunctive relief.

“The goal of the ADA is not just to beat people up, because there are no damages, per se, but to get people caught up to 2016,” said Steele (right). “My clients – and I believe, in general, other clients who have brought cases similar to mine – they’re not looking to get rich off [these lawsuits]. And they certainly do not get rich off it. They just want a business to extend the civil rights that they deserve.”

Steele also said he doesn’t nitpick when choosing cases to file.

“If I have a client that [says], ‘there’s this building, they’re not in compliance because the ramp grade is a little bit too steep,’ my general attitude is, this isn’t a game of ‘gotcha’ because of the rise-over-run elevation,” said Steele.

Nonetheless, that is a main point of contention in the case filed against Fabcakes.

That lawsuit stated the ramp to Fabcakes was approximately seven inches long and climbed approximately 3-4 inches between the sidewalk and the level of the front door.

“At the top of the ramp between the sidewalk and the front door, Mizerk would have had insufficient space to open the door and enter the restaurant, had she been able to climb the ramp,” the complaint said.

Previous focus was protecting adult entertainment industry

Steele has come under fire in recent years after his former firm, Prenda Law – which he sold, he says – allegedly made millions by threatening to sue thousands of people suspected of illegally downloading pornographic movies.

Some see a correlation between the demand letters sent to the defendants in those cases and the letters businesses are receiving now, advising them to comply with ADA guidelines.

Steele says as an attorney now focused on ADA litigation, it’s harder for people to mudsling, though they do try.

“In the adult entertainment industry, when they’re caught red-handed…sometimes they try to dirty or attack the name of the plaintiff [even though they’re guilty of] stealing adult content,” Steele said. “They would make it out that, ‘they’re porn people,’ putting them down, instead of [admitting], ‘oh, I did steal it.’ When you’re a business, I think attacking a person with disabilities who wants to get in [your establishment] that really doesn’t work when there is a picture of the complaint of my client in a wheelchair unable to get in the doorway.”

Steele maintains that many of his clients are young veterans who want to return to the same establishments they frequented before becoming injured in the line of duty.

“It’s been a real problem because these guys are going out and they’re finding out these fancy restaurants and bars…are not complying with the Americans with Disabilities Act,” Steele said.

Because the courts cannot go after every business that is not in compliance with the ADA, he says filing a discrimination lawsuit has become the only mechanism available to handicapped individuals.

That new customer could be an ADA ‘tester’

Still, defendants find many ADA lawsuits unpalatable, specifically when court filings openly list the plaintiff as a “tester,” someone who seeks out discriminatory public accommodations.

Steele says though he does not use them, he doesn’t think there’s anything wrong with it.

“I can’t think of a single instance where any of my clients have described a restaurant or establishment that isn’t in their neighborhood or they have gone to,” he said.

Indeed, the lawsuits filed by Mizerk against LaSalle Flowers and Fabcakes state that Mizerk lives within four blocks of each establishment.

But representatives of neither business can recall ever seeing Mizerk enter the store. And Milovich believes Mizerk has no intention of purchasing from LaSalle Flowers in the future.

If the case goes to trial, owner Margot Sersen could use that argument to challenge the standing of Mizerk, one of the few arguments a defendant can make against an ADA complaint.

Even then, it often isn’t enough to dissuade a court from siding with the plaintiff, as a simple sentence of fact usually does the trick, says William Pokorny, a labor and employment partner at Franczek Radelet P.C. “If you read the complaints, [they say], ‘I actually went in, I was a customer at the restaurant,’ and that’s usually enough to give them standing,” says Pokorny (left).

Marca Bristo, CEO and president of Access Living, a group which advocates on behalf of those with disabilities, says her group is not opposed to testers, nor to lawsuits that result from such tactics. In fact, Access Living created a fair housing testing program to root out discrimination in the housing sector.

If Access Living had the capacity to increase its scope of work to file suits under Title III, she says it would not rule out utilizing testers. “Do most disabled people go around [looking for noncompliant businesses]? No. We would be exhausted if we did that,” says Bristo (right). “Should we? We probably really should.”