Jarek Molski is a California business's worst nightmare.
The notorious plaintiff has filed nearly 400 claims in California federal courts, alleging violations of Title III of the ADA as well as California's Unruh Civil Rights Act, a state law that awards successful plaintiffs statutory damages of $4,000. He has reaped millions of dollars from settlements and statutory damages. But Molski's reign of trial court terror may soon come to an end.
In January 2004 he brought a suit against Mandarin Touch Restaurant in Solvang, Calif., alleging he injured his hand while exiting the establishment's bathroom because the facility was not ADA compliant.
The U.S. District Court for the Central District of California was skeptical of his claim. The restaurant was more than 100 miles away from Molski's residence, and he had never gone there before.
In March 2005, on a motion from the defendant, the court declared Molski and his counsel "vexatious litigants," meaning they will have to seek permission from the court if either wishes to file future ADA claims. Molski has appealed his case to the 9th Circuit.
"There is a real dispute between the business community and the plaintiffs' bar in disability access cases as to whether the law should permit these kinds of lawsuits," says Charles Post, a partner at Weintraub Genshlea Chediak, who represented business organizations that filed an amicus brief in Molski v. Mandarin Touch Restaurant. "I could see this ruling being a valuable precedent."
When determining whether Molski was a vexatious litigant, the court looked at several factors.
First, it examined Molski's litigation history. He had already filed nearly 400 suits throughout California, all alleging similar violations of the ADA. Although litigiousness alone doesn't categorize someone as vexatious, the court determined that many of his claims were non-meritorious and thus constituted harassment.
Next, the court looked at Molski's motive for filing suit. Although Molski proclaimed himself to be a "sheriff" on behalf of individuals with disabilities, the court saw things differently. It reasoned that if Molski merely wanted to make establishments more accessible, he would have sought only injunctive relief. However, because he also requested statutory damages, the court saw money as a motivating factor.
Third, the court measured the burden Molski placed on the courts and innocent defendants. Seeing that Molski has filed hundreds of suits--sometimes making claims against several establishments he visited in one day--the court determined he burdened the system.
Finally, the court took into account that Molski had representation and that no other sanction would adequately curb the burden he placed on the court.
Now it's up to the 9th Circuit to determine if the lower court was correct in classifying Molski as a vexatious litigant.
Experts speculate that Molski will argue that he was merely working on behalf of the disabled community, patronizing businesses with the intention of checking compliance. However, because of the number of frivolous claims he filed, this argument is likely moot.
"One possible outcome is for the court to establish a test that when a lawsuit is brought because someone is testing that law and actually seeks the benefits of statute, special attention must be given to the credibility of the plaintiff," says Garry Mathiason, senior shareholder at Littler Mendelson. "This means potentially allowing the plaintiff's past history of litigation to be put before the court."
Companies hope that if the 9th Circuit upholds the decision, it will give them a first line of defense against trigger-happy litigants.
"If the court does uphold the ruling, the good news for businesses is that if someone like Molski sues them in federal court, they will have an avenue to avoid litigation from the front end," says Talar Herculian, an associate at Fisher & Phillips. "However, if they get sued in California state court, this decision isn't going to have any effect."