A recent Law 360 story by Hanna Albarazi, “9th Circ. Slams ‘Abusive’ ADA Suits in Upholding Atty Fee Cut” reports that a Ninth Circuit panel on upheld a decision to slash attorney fees in an Americans with Disabilities Act lawsuit over a lack of accessible parking, suggesting in a scathing published opinion that the suit amounted to "abusive ADA litigation" by a serial litigant.  The circuit panel held that a California federal judge had not abused his discretion in reducing the attorney fees in an open-and-shut case over a lack of accessible parking spaces at a Los Angeles County shopping center, but the panel also used its opinion as an opportunity to rail against a perceived blight caused by serial ADA plaintiffs.

"The ADA satisfied the need for meaningful legislation for the protection of individuals with disabilities; however, one of the unforeseen consequences of this statute was the widespread abuse taking form due to the actions of serial ADA plaintiffs," wrote U.S. Circuit Judge Milan D. Smith Jr., who penned the unanimous opinion.  Smith wrote that the ability to recover attorney fees in ADA cases "has given rise to a wave of 'get-money quick' lawsuits brought by a small number of professional, serial plaintiffs."

However, enforcement of the ADA falls on persons with disabilities.  As a result, disabilities rights advocates frequently contend that bringing suit against violators increases accessibility.  Plaintiff James Shayler, who has physical disabilities that make walking and standing difficult, sued property owner 1310 PCH LLC in California federal court in November 2020, claiming its property in Hermosa Beach was in violation of the ADA and California's Unruh Civil Rights Act.

Shayler's suit went largely uncontested, resulting in summary judgment in his favor on the ADA claim and an award of injunctive relief. The court, however, declined to exercise supplemental jurisdiction over the Unruh Act.  Shayler then moved for over $34,000 in attorney fees and costs.

But U.S. District Judge George H. Wu concluded that the hourly rates and the time spent by his attorneys on the case were unreasonable given that the nature of the legal work was routine and because there had been a lack of meaningful opposition by the defendant.  Judge Wu adopted a $300 per hour blended billing rate for the work performed by Shayler's four attorneys and reduced the overall fee total by 65%.  In September 2021, Judge Wu ultimately awarded just under $10,000 in attorney fees and costs to Shayler.

Shayler quickly appealed the award, arguing that the downward reduction was unjustified.  The appellate panel affirmed the lower court's ruling.  "Given the repetitive nature of high-frequency ADA litigation, there was nothing irrational about the district court's conclusions that, in effect, much of the work here could have been performed by junior associates or even paralegals, or that much of the motion practice in the case was superfluous," Judge Smith wrote.

Judge Smith said the district court's choice of a $300 per hour blended billing rate was largely based on its finding that this was "a run-of-the-mill repeat-player ADA case lacking in legal, factual, or procedural complexity."  The district court cited decisions determining that serial ADA litigation, such as Shayler's, does not involve particularly complex work justifying partner-level billing rates, the panel said.  "A hallmark of abusive ADA litigation is the use of form complaints containing a multitude of boilerplate allegations of varying merit," the panel wrote.