Florida Lawyer News Services | Robbins Equitas

Current Florida Litigation Trends (July 2010)

By: Vincent Lynch, Managing Partner of Lynch & Robbins, P.A.

At Lynch & Robbins, our Florida lawyers continually monitor trends in recent lawsuit filings in Federal and state courts and administrative tribunals across Florida. We focus our research and advice to clients on the most prolific areas of the moment such as the Fair Labor Standards Act (FLSA), Fair Debt Collections Practices Act (FDCPA), Americans with Disabilities Act (ADA), securities, partnerships, and intellectual property law. We also track favorable developments in our other core practice areas including Commercial Litigation, Product Liability, Franchise, and administrative law cases. Lynch & Robbins has offices in Tampa, St. Petersburg, Orlando and Miami.

Florida Court Dockets Remain Flooded

The tidal wave of foreclosure and eviction cases coupled with the reduction in the Florida State Court budget have greatly impacted the number of cases on the dockets of the state court judges in Florida. However, many Florida judges and their staff are working hard to manage their dockets and we have seen surprising progress on state court cases we handle for clients throughout the Circuit Courts of Florida.

The Federal Courts in Florida

FLSA, ADA, Fair Debt Collection Practices Act (FDCPA) and intellectual property law cases are among the most filed lawsuits in the Federal Courts in Florida–that encompasses the Southern, Middle and Northern District Courts. Approximately 150 FLSA cases were filed against Florida companies in Federal Court in June of 2010 alone and over 20% of all FLSA lawsuits filed in Federal Court are filed in Florida. Over 50 intellectual property law cases were filed in Federal Court in Florida in June of 2010 including Patent Litigation, Trademark Infringement, and alleged Copyright violations.

In response to the extremely high volume of filings in certain areas including the FLSA and ADA, many Federal Judges across Florida including in Tampa, Orlando, Miami and Jacksonville issue special scheduling orders to manage and progress these cases quickly. Some Judges, particularly in the Southern District Courts in Miami and Fort Lauderdale enter orders allowing for shortened discovery periods and setting cases for a trial date a relatively short period of time from the date the case was filled—otherwise known as a “Rocket Docket.” These Judges know that nothing disposes of cases more efficiently than a firm and early trial date.

Over 750 lawsuits are filed monthly under the Federal Fair Debt Collection Practices Act and other Consumer Protection Laws in Federal Courts in the United States. At least 30 FDCPA cases were filed in Federal Court in Florida in June, 2010.

Employment Litigation

Employment litigation consistently remains one of the most prolific areas of litigation in Florida and across the U.S. Over 220 employment related lawsuits were filed against employers in federal court in Florida in June, 2010 including 150 FLSA and 75 employment discrimination cases.

Our Experience

Whether you need an employment lawyer (to defend and FLSA or discrimination case under Title VII, the Florida Civil Rights Act or the ADA), an intellectual property attorney or are involved in commercial litigation, the lawyers of Lynch & Robbins can help you. We are committed to providing our clients the most current methods for preventing and defending litigation efficiently and effectively. For more information, please visit us at www.floridalawyer.com.

Vincent Lynch is the Managing Partner of Lynch & Robbins. Mr. Lynch represents businesses, employers and individuals in complex federal and state court litigation, arbitration and administrative matters. Mr. Lynch has over 18 years of legal experience, and served as a state and Federal Court law clerk for 4 years before entering private practice. He has been a member of The Florida Bar since 1992.

Americans with Disabilities Act Update

Disability Access Lawsuits on the Rise

By Vincent Lynch, Managing Partner of Pinkard Lynch, P.A.

The Americans with Disabilities Act (ADA) was established by the United States Congress in 1990 to protect disabled Americans from discrimination in employment, government services and places of public accommodation, such as privately owned or operated hotels, restaurants, and shopping centers. The ADA is a Pandora’s Box of litigation for small, medium and large businesses.

Title III of the ADA requires businesses to be accessible to the disabled that utilize their goods and services. The ADA requires removal of structural barriers in businesses open to the public where removal is “readily achievable.” 42 U.S.C. §12182(b)(2)(A)(iv). Where removal of a barrier is not readily achievable, businesses may provide access “through alternative methods if such methods are readily achievable.” 42 U.S.C. §12182(b)(2)(A)(v). Aggrieved individuals may sue to enforce the ADA and, if successful, obtain injunctive relief and an award of attorney’s fees. 42 U.S.C. §§12188(a)(1); 2000a-3(a). Monetary damages are not recoverable. Several disabled persons, disability organizations and their attorneys are bringing high volume ADA litigation that is hurting business in an already difficult economic climate.

High Volume ADA Plaintiffs’ and their Lawyers

Some of these persons and organizations include Stephen A. Karakis, Nolan R. Campbell, Access for the Disabled Inc., and Access 4 All Inc. Over the last few years, hundreds of lawsuits were filed against a variety of businesses in an overzealous attempt to force compliance with the ADA. One of the most prolific ADA Access litigants is A. Joseph Raetano. Mr. Raetano, through his attorney, Todd Shulby, filed approximately 100 ADA cases in the Tampa Metropolitan Area in 2009 claiming discrimination by a laundry list of private businesses. Mr. Raetano sued 27 commercial property owners in Clearwater, Florida and 10 on Main Street in Dunedin, Florida. His lawyer, Todd Shulby, filed approximately 800 ADA lawsuits since 1995. Where does it end?

Enter Scott N. Johnson, Esq. a disabled attorney near Sacramento California who jumped on the ADA bandwagon and added a new twist. Mr. Johnson filed over a dozen lawsuits in November 2009 alone in the US District Court for the Eastern District California. Mr. Johnson filed over 100 lawsuits so far, represents himself and Disabled Access Prevents Injury, Inc., and seeks not only injunctive relief (such as repairs) but monetary damages under the California Civil Code. California courts are being flooded with new disability access cases in part because of even broader state protections than those available under the ADA and the right to seek damages.

Some backlash has taken place from Judges that handle ADA cases and several bills were presented before Congress to reform the ADA, but none have passed and it remains extremely easy for a business to be sued for a failure to comply with the ADA. Orlando Federal Judge Gregory Presnell indicated that “[t]he current ADA lawsuit binge is essentially driven by economics-that is, the economics of attorney’s fees.”

A Federal Court in California described their tactics:

“The scheme is simple: an unscrupulous law firm sends a disabled individual to as many businesses as possible, in order to have him aggressively seek out any and all violations of the ADA. Then, rather than simply informing a business of the violation and attempting to remedy the matter through ‘conciliation and voluntary compliance,’ a lawsuit is filed, requesting damage awards that would put many of the targeted establishments out of business.

Defending a Disability Access Lawsuit

Structures built before 1992 constitute “existing facilities” under the ADA. A business run in an “existing facility” need only remove actual structural barriers to access that are “readily achievable” and do not require “much difficulty or expense.” This is a fairly lenient standard and takes into consideration the cost of making repairs to remove the alleged barriers to access in a lawsuit. New facilities or buildings constructed after 1993 must be “readily accessible” and “usable” by individuals with disabilities. A comprehensive list of specific regulations govern new construction including specific architectural and building specifications such as counter heights and the size of a bathroom stall.

In either case, a company can defend the case by proving the person did not attempt to actually access the premises or has no real intention of returning which may be the case with a high volume Plaintiff. The private company can also assert that the alleged barrier does not, in fact, prevent the person from gaining access to the goods and services of the business. Also, the company can argue that the modification sought would create an undue burden or expense.

Our Experience

Our firm has successfully represented dozens of small and large companies throughout the US in disability access and employment litigation and prevention. Our clients include health care professionals, restaurants, golf courses, recreational businesses, shopping centers, retail stores and hotels.