Judge calls ADA lawsuit machine a 'carnival shell game,' dresses down attorney

Posted at 6:05 PM, Jul 11, 2017
and last updated 2017-07-11 23:26:01-04

ALBUQUERQUE, N.M. -- A federal judge decided that nearly 100 disability lawsuits filed in New Mexico, near carbon copies of cases filed in Colorado, were malicious and abusive.

U.S. Chief Magistrate Judge Karen Molzen, citing case law, compared the cases to "shotgun litigation [that] undermines both the spirit and purpose of the [Americans with Disabilities Act]."

The lawsuits claim businesses violate provisions of the Americans with Disabilities Act (ADA) and are thus inaccessible to people who have disabilities.

Most recently, cases have hit hundreds of businesses in five states -- Arizona, New Mexico, Nevada, Utah and Colorado.  Nearly all of them have ties to a Phoenix-based group called Advocates for Individuals with Disabilities (AID), also known as Litigation Management and Financial Services.  The group filed nearly 2,000 cases in Arizona alone in the last 18 months.

The judge's ruling will serve as a recommendation to Chief U.S. District Judge Christina Armijo in Albuquerque to dismiss the New Mexico cases with prejudice and require the lawsuit filers to pay roughly $40,000 in court filing fees.

Denver7 attended a hearing in Albuquerque in May where the New Mexico plaintiff, Alyssa Carton, admitted under oath that her cases were malicious and abusive.  Carton and her Santa Fe attorney, Sharon Pomeranz, had requested a waiver on prepayment of court fees.

In April, before her appearance in court, Carton told Denver7, its sister station ABC15 in Phoenix, and KOB-TV in New Mexico that she felt used and misled by the people who were working with her.

"I understand how people can be upset," she said of the 99 businesses she sued.

The judge on Monday acknowledged what Carton has said along -- that she wants to improve accessibility in her community.  She has spina bifida.

"I've endured a lot of challenges with accessibility and just, you know, struggling with everyday life," she said in April.

Carton had responded to an AID job posting on Craiglist last year.  Around the same time, Denver7 learned the group made similar postings in Denver and Las Vegas seeking ADA advocates and civil rights attorneys.

Carton told the judge and Denver7 that she expected the group in Phoenix and Pomeranz to assist her in having conversations with businesses before resorting to litigation.  She said she never had a chance to fully review lawsuits before they were filed.

"My goal was to help, you know, move ADA along," she previously said to Denver7.  "I would have stood up for myself a little bit more and said, 'Hey, I think we can do this a little bit better.'  And I think there were times that I did, but I didn't push hard enough."

Carton and Pomeranz both entered into secret contracts with Litigation Management and/or AID, which the judge later made public.  The contracts state that the group paid Carton $50 and Pomeranz $100 for each case filed.  If the cases resulted in settlements in excess of $2,000, the group contractually guaranteed itself a $2,000 check.

Pomeranz admitted under oath that attorneys in other states entered into similar contracts with Litigation Management and/or AID.

Businesses who've been hit with the similar lawsuits in Colorado have said they were offered $3,000 settlement proposals.

According to the contract Pomeranz had Carton sign with her law firm, Pomeranz would keep 100-percent of any settlements she received after conveying the remainder to Litigation Management and/or AID.

"Thus, as in a carnival shell game, Ms. Carton’s expectation for receiving any settlement proceeds was illusory," the judge said of the lawsuit operation.

The judge picked apart nearly every facet of the lawsuit model.  For instance, she pointed out how Carton did not adequately meet the qualifications of an ADA tester because it was evident she did not, in some cases, personally experience an ADA barrier or take physical measurements of ADA violations.

"It appears that Attorney Pomeranz and [Litigation Management] are using the judicial process to harass Defendants into settlements to obtain financial gain for Attorney Pomeranz and [Litigation Management] and not to remedy ADA violations that served as barriers to individuals with disabilities in accessing goods and services," the judge wrote.

Roughly three dozen attorneys are defending the 99 New Mexico businesses that were sued.  In court in May, they asked the court to grant them payment of their own attorney fees.  They also want Pomeranz sanctioned.  Judge Molzen said she was not asked to decide on those issues, but is recommending that the court address those requests.

ABC15 sought comment from Litigation Management late Monday, but has not heard a response.

Carton told Denver7 on Tuesday that she learned of the judge's ruling from New Mexico media, not her own attorney.