DURING TWO HOURS of testimony in federal court on Tuesday, Brian Whitaker, a disabled person who frequently files lawsuits against small businesses under the Americans with Disabilities Act, outlined a new strategy that he believes will allow him to retain and potentially increase the federal lawsuits he brings in the Bay Area.

In responding to allegations that he does not have legal standing to sue in federal court because he does not genuinely intend to return to the places he sues, Whitaker testified that he and his lawyers have put a new program into place under which he will return to every place he sues.

Going forward, when he is notified by his lawyers that one of his cases has settled and the time for remediation of the ADA violation has expired, Whitaker will return to the site to test whether the violation has actually been corrected.

He will take photos when he is there and if the violation is still present, he will sue the establishment again. He testified that he will return to every place that he sues in the future.

Whitaker also testified that he intends to return to at least some of the more than 1,800 businesses he has sued in the past, though he conceded it might not be possible to return to them all.

The new program was instituted in the “last month or two” in part as a response to his disappointment and frustration after losing a few cases on standing and the feeling that “a bad connotation” has been “stuck to his name,” he said in his testimony.

He explained that although he has returned to “hundreds and hundreds” of places he has sued, he was not aware that he needed to be able to document his return.

He said he been given a “bad rap.” He views himself as a man of “high integrity and high honor” and is proud of the work he has done making businesses throughout the state more accessible for people with disabilities.

Surge in ADA cases

The hearing was the latest development in the ongoing controversy over the surge in ADA litigation in the U.S. District Court for the Northern District of California.

According to a Bay City News analysis, approximately 23 percent of all cases filed in the district in 2021 were ADA cases, a threefold increase from 2020. Most of the cases — 85 percent — were brought by a small group of disabled plaintiffs represented by the Potter Handy law firm of San Diego.

The controversy intensified when, on April 11, the district attorneys of San Francisco and Los Angeles joined forces to bring an unusual civil lawsuit against Potter Handy and 15 of its lawyers, accusing them of relying on false testimony from their clients to bring cases in federal court.

The district attorneys argued that in order for a federal court to have jurisdiction over an ADA case, the plaintiff not only had to personally encounter a barrier to accessibility at a place of public accommodation like a store or restaurant, but he or she also had to have a genuine intention to return to the establishment in the future. Without such an intent, the plaintiff does not have legal standing to sue and the case must be dismissed.

Potter Handy’s clients allegedly did not have such an intent and even though the law firm knew that, they brought suit anyway. In consequence, according to the district attorneys, over the last four years “California’s small businesses have paid Defendants tens of millions of dollars … all to settle lawsuits containing false standing allegations.”

The district attorneys requested San Francisco Superior Court to enjoin the law firm from further violations of California’s unfair competition law and compel it to repay thousands of small businesses the money they paid to settle claims brought over the last four years.

Potter Handy has not yet filed a response to the lawsuit, but Dennis Price, a partner in the firm, issued a statement the day after the suit was filed expressing concern about the motivation of the district attorneys.

Price said that the district attorneys were both facing recall threats “and are filing these claims in order to generate support.”

Ordered to show cause

The district attorneys’ suit was filed in state court, but quickly came to the attention of some of the judges presiding over Potter Handy cases in federal court.

In the two weeks following the district attorneys’ suit, U.S. District Judge Vince Chhabria, acting on his own initiative, issued orders to show cause in at least 10 pending Potter Handy cases requiring the plaintiffs and their lawyers to file detailed declarations under penalty of perjury to “substantiate” the basis for standing in the individual cases.

The judge said that he would likely hold an evidentiary hearing to test the “veracity” of the declarations.

On May 10, Potter Handy filed responses to Judge Chhabria’s orders. In each case the response included a declaration from the firm’s client and one from Mark Potter, a name partner in the firm and one of the lawyers named in the district attorneys’ suit.

The responses stated that each Potter Handy client was aware of the standing issue and knew of his or her obligation to return to the place they encountered the barrier to accessibility. Mark Potter said that based on his relationship with each of his clients, he was confident that their intent to return was genuine.

In one matter involving Potter Handy client Scott Johnson, Chhabria stated that papers filed by Johnson and the law firm were “boilerplate submissions” that “were incomplete and misleading.”

In the judge’s opinion, “they omitted several important facts about this case, raising serious questions about the credibility of Johnson and his attorneys from the Potter Handy firm.”

The Peet’s Coffee restaurant at 625 8th St. in San Francisco is one of 34 businesses that were hit with ADA compliance lawsuits in September 2021 by plaintiff Brian Whitaker. Whitaker claimed the Peet’s location used outdoor dining tables that were not wheelchair accessible. (Google image)

Notwithstanding those observations, the judge did not convene an evidentiary hearing on the standing question in the Johnson case because Potter Handy filed a notice conceding that the ADA violations had been corrected and Johnson’s claim was moot. Given that there was no longer anything in contest, the judge dismissed the case without further exploration of the facts around standing.

Tuesday’s hearing in the case of Whitaker v. Peet’s Coffee Inc. appeared at first to be headed in the same direction.

Whitaker had sued Peet’s over an inaccessible outdoor table and Peet’s challenged Whitaker’s standing but shortly before the scheduled hearing was to begin, Potter Handy filed a statement suggesting that the case was moot.

The filing was so late that Chhabria had not had time to read it before court began. Given the late filing, the judge asked counsel for Peet’s Coffee, Brett Burns, if he wanted to accept the concession of mootness or proceed with the evidentiary hearing.

Burns elected to go forward.

Under Burns’ cross examination, Whitaker testified that on Sept. 2, 2021, he flew from his home in Los Angeles to San Francisco. He was accompanied by a friend who he paid $500 to serve as “security” during the one-day trip. He also paid for the friend’s plane ticket and other expenses.

Stranger in town

Whitaker testified that he had no prior connection to the Bay Area — he had never lived there and had no family nearby. He said he did have one friend who lived in San Francisco, but he could not remember the friend’s last name.

He said he was there to “canvas” the area as a potential place to move as well as to pursue his ADA “advocacy,” though Burns pointed out that in a prior deposition Whitaker had not previously mentioned that advocacy was a part of his motive for visiting.

Whitaker said he had never been to SoMa where the Peet’s was located. As he passed by Peet’s, he wanted to buy a hot chocolate but saw that the outdoor tables were not accessible for a person in a wheelchair and so he was deterred from buying.

On that same one-day trip to the city, Whitaker identified 34 places (including Peet’s) with ADA violations, including 21 restaurants, five food markets and eight stores. The stores included a dry-cleaners, a jewelry store, a hardware store and a store that sells shoes.

Each of those encounters resulted in a lawsuit.

Whitaker did not remember how long it took him to identify the 34 violations, but did not contest the statement that in a prior deposition he had testified he was there “maybe an hour or two.” He said many of the violations were for the lack of accessible outdoor tables and it only takes him about 10 seconds to determine if such a table is accessible.

Much of the testimony focused on the credibility of Whitaker’s intent to return.

Burns elicited the fact that as of the date of the hearing, 26 of the cases from the 2021 trip had settled. Whitaker conceded that he had not been back to any of the 26 establishments yet.

Whitaker then testified that he did intend to return to each of them and would have done so by the hearing date but he had contracted COVID-19 and had to delay a planned trip the Bay Area.

The trip was part of a new strategic plan that he had and the lawyers had made in the last month or two.

Returning to the scene

Under the new plan, when a lawsuit is settled and the time to remediate the ADA violation has passed, Potter Handy will notify Whitaker of that fact and Whitaker will then revisit the site to assess compliance.

Whitaker testified that he has been implementing the new strategic plan and has revisited a number of stores and restaurants although, so far, in Northern California he has only revisited establishments in Roseville.

The COVID-delayed trip to San Francisco was first scheduled a week ago.

Whitaker testified that he now planned to travel to San Francisco on Wednesday, June 1, and spend the week revisiting stores and restaurants. He did not know how many establishments he could revisit in that timeframe, though he said he anticipated he could easily do 30 locations a day.

Under the new plan, when a lawsuit is settled and the time to remediate the ADA violation has passed, Potter Handy will notify plaintiff Brian Whitaker of that fact and Whitaker will then revisit the site to assess compliance.

During Whitaker’s testimony, his counsel made a number of objections to the relevance of Burns’ questioning, most of which were overruled by Chhabria on grounds that the testimony was relevant to the question of whether Whitaker had a “motive to lie.”

When questioned by Price, Whitaker said that he had made a firm decision to move from Los Angeles to Sacramento in time for the next school year. He would have preferred to move to San Francisco or Sausalito but prices were too high.

Sacramento is less than a two-hour drive from San Francisco, so he will be easily able to make day trips to the city, an approach both cheaper and easier than flying in from Los Angeles. That will allow him to make more frequent trips for site revisits and to expand his “advocacy” in the Bay Area, that is, by identifying and suing over barriers to accessibly.

During questioning by Price, Whitaker said that he was frustrated that his integrity and honor had been challenged while it was “these businesses that have no credibility.”

At one point during the hearing, Burns tried unsuccessfully to get Whitaker to estimate the amount of money he typically receives when one of his cases settles. Whitaker said the cases are all different and there isn’t a standard amount.

Chhabria asked Whitaker if was accurate to state that Whitaker “wasn’t in it for the money.” Whitaker responded that money “was not the most important thing.”

Chhabria allowed Burns a week to file a post-trial brief and gave Price a week thereafter to respond.

Joe Dworetzky is a second career journalist. He practiced law in Philadelphia for more than 35 years, representing private and governmental clients in commercial litigation and insolvency proceedings. Joe served as City Solicitor for the City of Philadelphia under Mayor Ed Rendell and from 2009 to 2013 was one of five members of the Philadelphia School Reform Commission with responsibility for managing the city’s 250 public schools. He moved to San Francisco in 2011 and began writing fiction and pursuing a lifelong interest in editorial cartooning. Joe earned a Master’s in Journalism from Stanford University in 2020. He covers Legal Affairs and writes long form Investigative stories. His occasional cartooning can be seen in Bay Area Sketchbook. Joe encourages readers to email him story ideas and leads at joe.dworetzky@baycitynews.com.